Law Society of Upper Canada v. Igbinosun

96 O.R. (3d) 138

Court of Appeal for Ontario,

Weiler, Gillese and Watt JJ.A.

June 16, 2009

Professions -- Barristers and solicitors -- Discipline -- Delay -- Lawyer charged with sexual assault in 1999 and 2001 -- Complainants filing complaints with Law Society in 2001 -- Law Society's investigation starting after criminal charges were dismissed for delay in 2003 -- Hearing Panel dismissing lawyer's motion for stay of proceedings on basis of delay in February 2006 -- Panel ultimately finding lawyer guilty of professional misconduct and disbarring him -- Lawyer appealing to Appeal Panel but not appealing on issue of delay -- Appeal Panel nevertheless finding that delay was not unreasonable -- Divisional Court remitting matter to new Hearing Panel on basis of breaches of natural justice unrelated to issue of delay -- Divisional Court not erring in finding that new Hearing Panel was bound by previous panel's decision that delay from 1999 to February 2006 was not unreasonable.

Professions -- Barristers and solicitors -- Discipline -- Natural justice -- Lawyer facing complaints of sexually assaulting three women -- Hearing Panel breaching standards of natural justice by denying lawyer's request for brief adjournment of hearing so that he could be represented by counsel -- Hearing proceeding in lawyer's absence and lawyer found guilty of professional misconduct -- Hearing Panel breaching standards of natural justice by proceeding immediately with penalty phase of hearing -- Lawyer disbarred and ordered to pay costs -- Appeal Panel affirming finding of professional misconduct and disbarment -- Divisional Court properly setting aside Appeal Panel's decision.

MI, a lawyer, was charged in 1999 with sexually assaulting the mother of a client. Two more sexual assault charges were laid in 2001. The complainants also filed complaints with the Law Society in 2001. The Proceedings Authorization Committee ("PAC") authorized an investigation, but deferred the investigation pending the outcome of the criminal charges. Those charges were stayed in December 2003 for unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms. In February 2005, the PAC authorized a Notice of Application against MI. In February 2006, MI's motion to stay the disciplinary proceedings for delay was dismissed. MI's lawyer subsequently had himself removed as counsel of record, but before doing so, he agreed to a hearing date of September 18, 2006. MI tried to have the Hearing Panel adjourn the hearing date but was told to bring a motion. The first available date for the motion was September 14, 2006. On that date, his request for a four-month adjournment was refused. The next day, he retained counsel. On the date of the hearing, counsel made several requests for adjournments in order to accommodate his schedule. Those requests were denied because (a) the request for an adjournment had already been refused four days earlier; (b) the matter had been marked peremptory; and (c) there was no certainty as to the time when counsel would be able to continue. Counsel removed himself from the record and the hearing proceeded. MI declined to participate. The Hearing Panel found MI guilty of professional misconduct. It then proceeded immediately to a determination of the appropriate penalty. In order to do so, it dispensed with compliance with the formal notice requirements for the victim impact statements on which the Law Society intended to rely. MI was disbarred and ordered to pay costs. Apart from reducing the costs award, the Appeal Panel dismissed MI's appeal. The Divisional Court set aside the Appeal [page139] Panel's decision and remitted the matter to a new Hearing Panel, holding that the Hearing Panel breached the standards of natural justice by not granting MI a brief adjournment so that he could be represented by counsel and by failing to give MI adequate notice that it was proceeding with the penalty phase. The Law Society appealed that decision. The Divisional Court dismissed MI's request that the proceedings against him be stayed on account of the Law Society's inordinate delay in proceeding against him. MI appealed that decision.

Held, the appeals should be dismissed.

The Divisional Court properly set aside the Appeal Panel's conclusion that the denial of an adjournment on September 18 was not a denial of natural justice. The Appeal Panel and the Hearing Panel erred by failing to consider the lack of any prejudice from the minimal adjournment requested on September 18 and failed to balance the public interest in having the hearing concluded expeditiously against the very serious prejudice to MI of being forced to proceed without counsel. There was no discernible prejudice to the Law Society or its witnesses in granting a brief adjournment.

The Divisional Court properly set aside the Appeal Panel's conclusion that the penalty phase of the hearing was not procedurally unfair. There was no urgency requiring the penalty phase to proceed so quickly. The potentially serious consequences of the hearing to MI and lack of any prejudice to the Law Society warranted following the normal timelines. MI did not receive reasonable notice of the penalty phase of the hearing.

On MI's appeal to the Appeal Panel, he did not allege any errors of law in the Hearing Panel's decision denying him a stay of proceedings because of delay. However, the Appeal Panel ruled on that issue and found that the delay of some six years in proceeding against MI had not resulted in prejudice of the type that would warrant a stay of proceedings. The Divisional Court found that the new Hearing Panel was bound by the previous panel's findings on the effects of delay for the period from 1999 to February 2006. There was no reason to interfere with that finding. Since MI never properly appealed the Hearing Panel's finding on delay, there was no injustice in refusing to allow him to re-argue the matter in a new hearing. It was still open to him to argue that the delay from February 2006, when considered in the context of the overall time frame, had resulted in prejudice to him sufficient to warrant a stay.

APPEALS from the order of the Divisional Court (Jennings, Pitt and Molloy JJ.), 2008 36158 (ON SCDC), [2008] O.J. No. 2848, 239 O.A.C. 178 (Div. Ct.) setting aside a decision of the Appeal Panel affirming decisions of the Hearing Panel.

Cases referred to R. v. Hazout, 2005 30050 (ON CA), [2005] O.J. No. 3550, 201 O.A.C. 235, 199 C.C.C. (3d) 474, 67 W.C.B. (2d) 692 (C.A.); R. v. Wood, 2005 13779 (ON CA), [2005] O.J. No. 1611, 197 O.A.C. 43, 196 C.C.C. (3d) 155, 15 M.V.R. (5th) 37, 65 W.C.B. (2d) 221 (C.A.), distd Other cases referred to Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497, 51 C.P.C. (6th) 326, 156 A.C.W.S. (3d) 1029 (S.C.J.); Hytec Information Systems Ltd. v. Conventry City Council, [1997] 1 W.L.R. 1666 (C.A.); Igbinosun v. Law Society of Upper Canada, [2007] O.J. No. 4791, 162 A.C.W.S. (3d) 530 (Div. Ct.); Jourdain v. Ontario, 2008 22130 (ON SC), [2008] O.J. No. 1868, 167 A.C.W.S. (3d) 498 (S.C.J.); Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523, [2005] O.J. No. 2097, 254 D.L.R. (4th) 503, 198 O.A.C. 201, 30 Admin. L.R. (4th) 289, 139 A.C.W.S. (3d) 682 (Div. Ct.); Khimji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790, [2004] O.J. No. 320, 182 O.A.C. 142, 44 C.P.C. (5th) 56, 128 A.C.W.S. (3d) 904 (C.A.); Moudry v. Moudry, 2006 33542 (ON CA), [2006] O.J. No. 3957, 216 O.A.C. 84, 33 R.F.L. (6th) 52, 151 A.C.W.S. (3d) 636 (C.A.); R. v. Marzocchi, 2006 13096 (ON CA), [2006] O.J. No. 1648, 211 O.A.C. 2, 69 W.C.B. (2d) 410 (C.A.) [page140]

Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(c) Law Society Act, R.S.O. 1990, c. L.8, s. 61.2(4) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 6 [as am.], (3) [as am.], 7, (1) [as am.]

Rules and regulations referred to Law Society of Upper Canada, Rules of Practice and Procedure [commenced prior to July 1, 2009], rule 1.05

Brian Gover and Katherine Hensel, for appellant/respondent. Tracey Tremayne-Lloyd and Elyse Sunshine, for respondent/appellant.

The judgment of the court was delivered by

WEILER J.A.: --

Overview

[1] The Law Society of Upper Canada (the "Law Society") and Matthew Igbinosun ("Igbinosun"), a lawyer found guilty of professional misconduct, bring separate appeals from the decision of the Divisional Court dated July 18, 2008. That court set aside the order of the Law Society Appeal Panel ("Appeal Panel"), which had upheld a finding of professional misconduct and an order of disbarment against Igbinosun imposed by the Law Society Hearing Panel ("Hearing Panel") on September 20, 2006. The Divisional Court remitted the Law Society's allegations of professional misconduct and, if necessary, penalty, to a newly constituted hearing panel for a full hearing.

[2] The Divisional Court held that the Hearing Panel breached the standards of natural justice in two respects. First, during the liability phase, the Hearing Panel refused to grant Igbinosun a brief adjournment in order for him to be represented by counsel. Second, after the liability phase had concluded, it failed to give Igbinosun adequate notice that it was proceeding with the penalty phase. The Law Society appeals from these holdings.

[3] The Divisional Court then considered Igbinosun's request that the proceedings against him be stayed on account of the Law Society's inordinate delay in proceeding against him and dismissed that request. Igbinosun appeals from this decision. [page141]

[4] For the reasons that follow, I would dismiss both appeals.

Issues

[5] The appeals require the court to address three issues: (1) Did the Divisional Court err in setting aside the Appeal Panel's conclusion that the denial of an adjournment to Igbinosun on September 18 was not a denial of natural justice? (2) Did the Divisional Court err in setting aside the Appeal Panel's conclusion that the penalty phase of the hearing was not procedurally unfair? (3) Did the Divisional Court err in upholding the decision of the majority of the Appeal Panel dismissing Igbinosun's motion for a stay of proceedings on account of undue delay?

Facts

[6] Igbinosun was called to the Ontario Bar in February 1998. In July 1999, the mother of a young person that Igbinosun was representing in a criminal matter made a complaint of sexual assault against him that resulted in criminal charges being laid. In July 2001, Igbinosun was charged with two further counts of sexual assault in relation to two different complainants. One of these complainants had a lien on her condominium unit and met with Igbinosun to look into having the lien removed. The other complainant was the property manager of a condominium corporation that Igbinosun was representing.

[7] In addition, the three complainants each filed complaints regarding Igbinosun with the Law Society in 2001. On February 13, 2002, the Proceedings Authorization Committee ("PAC") of the Law Society authorized an investigation into the complaints. However, on May 22, 2002, the investigation was deferred by the PAC, pending the outcome of the criminal charges.

[8] On December 12, 2003, the criminal charges against Igbinosun were stayed for unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms. As a result, shortly after February 2, 2004, the PAC authorized the closing of the Law Society's monitoring file on Igbinosun. However, in March 2004, the Law Society learned that the three complainants still wished the Law Society investigation to continue and that they each planned to bring a civil action against Igbinosun. The Law Society proceeded to assign a new investigator to the three complaints. On October 15, 2004, the investigator notified Igbinosun that the investigations into the three complaints were proceeding. [page142]

[9] On February 23, 2005, the PAC authorized the Notice of Application against Igbinosun. Igbinosun was notified of this on March 15, 2005 and served with the Notice on April 1, 2005. At some point after this, Igbinosun contacted Anil Kapoor, a lawyer who agreed to represent Igbinosun in the disciplinary proceedings, once full and complete disclosure was obtained. Igbinosun first appeared before the Hearings Management Tribunal ("HMT") on April 25, 2005, at which time he was granted an adjournment to May 9, 2005. Due to miscommunication, Igbinosun did not attend on that date and the HMT set the hearing for the week of August 22, 2005.

[10] On May 24, 2005, the hearing date was vacated on consent. On June 20, 2005, before the HMT, the hearing was re-set for October 24, 2005 and was ordered to proceed peremptorily. Kapoor sought an adjournment of this date before the HMT on August 29, 2005, but this request was refused. Another adjournment was sought on September 12, 2005 and this request was also refused. These adjournments had been sought because Kapoor was already committed to acting in a murder trial on October 24, 2005 and thus would be unable to attend the hearing if it were not rescheduled. Due to the HMT's refusal to adjourn the hearing date, Kapoor was unable to act for Igbinosun and ceased to do so.

[11] On October 12, 2005, Igbinosun retained John J. Lawlor to represent him. At the October 24, 2005 hearing date, Lawlor successfully had the hearing adjourned until February 27, 2006, again to proceed peremptorily. As a condition of this adjournment, Igbinosun agreed to waive the period between June 22, 2005 and February 27, 2006 in his planned application to stay the proceedings for delay. Igbinosun's motion to stay the disciplinary proceedings for delay was heard on February 24 and 27, 2006. The majority of the panel, W. Paul Dray and Holly Harris, dismissed it, while the chair of the panel, Ross W. Murray, Q.C., dissented. Lawlor then sought to adjourn the proceedings. This request was refused and the hearing commenced on February 28, 2006. Written reasons for dismissing the application for a stay were released on April 27, 2006.

[12] The initial phase of the hearing before the Hearing Panel took place from February 28, 2006 to March 3, 2006. During this time, the Law Society completed its case. Lawlor then indicated that he intended to call evidence. However, due to other commitments, the Hearing Panel was unable to hear [page143] defence evidence at that time. As a result, the hearing was adjourned without a fixed date for continuation being set. [^1]

[13] It was only on June 19, 2006 that a teleconference was held to schedule the continuation date for the hearing.

[14] Meanwhile, in a letter dated May 23, 2006, Lawlor informed Igbinosun that he intended to bring a motion to remove himself as counsel of record. Lawlor's stated reasons for doing this were his perception that Igbinosun had lost confidence in him, as well as Igbinosun's refusal to provide Lawlor with statements documenting what Igbinosun and other defence witnesses intended to say at the hearing. On June 5, 2006, Lawlor contacted the Tribunals Office of the Law Society to indicate his intention to remove himself from the record. In an e-mail dated June 7, 2006, Lawlor informed Igbinosun that he (Igbinosun) and any new counsel that he may have retained must participate in the June 19 conference call. On that same day, Igbinosun responded to Lawlor, stating that he was not available on June 19 and that he was under the belief that Lawlor would represent him on the call. In a letter dated June 7, 2006, Lawlor responded to Igbinosun and told him that he would be present for the conference call, but that Igbinosun was also required to take part.

[15] On June 19, Igbinosun did not participate in the conference call. Lawlor did participate in the conference call and indicated that he would be seeking to remove himself from the record but that Igbinosun had asked him to represent him on the call. During a discussion about when members of the panel and counsel were available to continue with the hearing, September 18 was suggested. Lawlor indicated that he was available on that date. The hearing was scheduled to continue on September 18, 2006, peremptorily.

[16] On July 21, 2006, Lawlor's motion to be removed as counsel of record was dealt with by way of teleconference by the Hearing Panel. Igbinosun joined the call late and tried to persuade the panel to revisit its decision to allow Lawlor to be removed from [page144] the record but was unsuccessful in doing so. Igbinosun tried to have the Panel adjourn the September 18 hearing date but was told to bring a motion. The first available date for the motion was September 14, 2006. On that date, his request for a four-month adjournment was refused. [^2] The next day, September 15, 2006, Igbinosun retained Mr. Miguna to represent him.

[17] On the day of the hearing, September 18, 2006, Miguna made several requests for adjournments. First, he asked for the hearing to be rescheduled to either October 9, 2006 or November 1, 2006. After this was denied, Miguna requested an adjournment of 48 hours (until the morning of Wednesday, September 20, 2006). This request was also denied. Finally, Miguna stated that he was willing to proceed immediately, but that he would need a recess at 2:00 p.m. in order to attend a previously scheduled pre-trial. While Miguna stated that he could continue the hearing the following day, Miguna had earlier informed the court that he had a motion in Barrie the next day. The record does not indicate how Miguna planned to deal with the motion scheduled to be heard in Barrie on the 19th. Miguna's requests to accommodate his schedule were also denied. As a result, Miguna removed himself from the record.

[18] The reasons the Hearing Panel gave for refusing the adjournment were: (a) the request for an adjournment had already been refused four days earlier, (b) the matter had been marked peremptory, (c) there was no certainty as to the time when Miguna would be able to continue and (d) the matter had been awaiting resolution for a long time.

[19] After Miguna removed himself, the Hearing Panel instructed Igbinosun to begin his defence. Igbinosun explained that he did not have any of the files with him. Accordingly, the Hearing Panel recessed until 2:00 p.m. in order to allow Igbinosun to obtain them. When the Hearing Panel reconvened, Igbinosun stated that he did not feel competent to represent himself and would not be participating. Igbinosun also claimed, falsely, that at the time of the June 19, 2006 conference call to set a date for the continuation of the hearing, Lawlor had not informed him that [page145] he planned to get off the record. [^3] After Igbinosun left the hearing, he was informed by way of telephone and fax that the matter would be proceeding the following morning.

[20] On September 19, 2006, the Hearing Panel reconvened to continue the matter. Igbinosun did not attend. The Hearing Panel proceeded to find Igbinosun guilty of professional misconduct. The Hearing Panel then informed counsel for the Law Society that it wished to proceed immediately to a determination of the appropriate penalty. The Law Society's counsel stated that she had not anticipated that the Hearing Panel would deal with the penalty at that time and that Igbinosun had not yet been provided with the victim impact statements on which the Law Society intended to rely. Counsel for the Law Society also informed the Hearing Panel that she was obligated to provide these documents to Igbinosun ten days before the penalty hearing began. The Hearing Panel instructed counsel for the Law Society to give Igbinosun as much notice as possible but to be ready to proceed with the penalty phase of the hearing the following afternoon.

[21] At 5:12 p.m. on September 19, counsel for the Law Society sent a fax to Igbinosun informing him of the finding against him, the Law Society's intention to rely on victim impact statements and the fact that the hearing would proceed to penalty the next day at 1:00 p.m. The fax also contained two victim impact statements. At 12:03 p.m. on September 20, 2006, the Law Society sent another fax to Igbinosun, containing a third victim impact statement and a notice that the Law Society would be seeking costs, although a bill of costs was not provided. At 12:54 p.m., all of these materials were personally served on Igbinosun.

[22] At 1:20 p.m. of the same day, the Hearing Panel reconvened. Once again, Igbinosun did not attend. The Hearing Panel adjourned until 2:00 p.m. to give him an opportunity to appear, but he did not. Counsel for the Law Society then advised the Hearing Panel that Igbinosun had informed her that he could arrive by 4:00 p.m. The Hearing Panel refused to wait until that time and proceeded without him.

[23] Counsel for the Law Society made submissions that the content of the victim impact statements had been substantially disclosed previously and requested that the Panel exercise its discretion under rule 1.05 of the Law Society's Rules of Practice and Procedure to dispense with compliance of the formal notice [page146] requirement in the interests of justice. The Hearing Panel so ruled. After hearing the evidence, submissions on the applicable law regarding penalty and submissions on costs, the Hearing Panel ordered that Igbinosun be disbarred and pay costs of $82,042.

[24] On November 8, 2006, Igbinosun moved before the Appeal Panel to stay the Hearing Panel's order pending his appeal. That motion was granted on the basis that the balance of convenience strongly favoured the granting of a stay.

[25] Igbinosun's appeal of the Hearing Panel's decision was heard on October 30, 2007 and dismissed except for a reduction of the costs award. While Igbinosun submitted that the Hearing Panel's findings of professional misconduct against him was tainted by breaches of procedural fairness and that he had been denied natural justice, the Appeal Panel ultimately dismissed this ground of appeal and upheld the penalty of disbarment. The Appeal Panel also concluded that there had been no undue delay in the prosecution of the proceedings.

[26] On December 6, 2007, Lane J. of the Superior Court of Justice [[2007] O.J. No. 4791, 162 A.C.W.S. (3d) 530 (Div. Ct.)], sitting as a single judge of the Divisional Court, granted Igbinosun's motion to stay execution of the penalty of disbarment pending his appeal to the Divisional Court, noting there was a serious issue of procedural unfairness to be argued and that the balance of convenience favoured granting a stay.

[27] The Divisional Court unanimously set aside the decision of the Appeal Panel on the basis that Igbinosun had been denied natural justice at both the hearing and penalty phases of the proceedings. The majority declined to interfere with the Appeal Panel's conclusion on the issue of undue delay.

(1) Did the Divisional Court err in setting aside the Appeal Panel's conclusion that the denial of an adjournment to Igbinosun on September 18 was not a denial of natural justice?

[28] The Law Society submits that reading the reasons of the Appeal Panel as a whole, it is clear that it concluded that there had not been a breach of natural justice, although "the analysis that preceded that conclusion did take into account certain aspects of the proceedings that, when viewed in isolation, may have appeared to have compromised the hearing's procedural fairness, specifically the denial of the September 18, 2006 adjournment request . . ." (Law Society Factum, para. 74).

(i) Law Society Appeal Panel

[29] At the hearing of the appeal, Igbinosun argued that in a number of instances he had been wrongly denied adjournment [page147] requests by the Hearing Panel and the HMT, most particularly on September 18, 2006, and that, as a result, he had been denied natural justice. The extracts below are taken from the Appeal Panel's decision on this issue [at paras. 54, 60, 79 and 90]:

The appellant's own conduct did contribute to the denial of some of the adjournment requests. There were repeated requests for adjournments by the appellant and reluctance to provide his availability to his counsel in meaningful blocks of time to assist in the scheduling of matters. His communications to his counsel regarding his availability were more often characterized by a rejection of the specific date with no alternative provided. The denial of an adjournment in those circumstances did not amount to a denial of natural justice . . .

The Hearing Panel was faced with a party that it viewed as having requested multiple adjournments. It felt pressed to bring the matter to a conclusion, given the original filing of the Notice of Application in February of 2005. However, on this specific date [Sept 18], the appellant demonstrated a clear intention to proceed. His counsel was flexible and attempted to find various ways to accommodate the exigencies of the schedule. The appellant was prepared to go ahead but did not wish to do so in the absence of counsel . . .

The Appeal Panel finds that the denials of adjournments identified by the appellant, save for the instance of September 18, 2006, do not demonstrate a breach of natural justice. The fact that the dates were peremptory on the appellant reflected the entitlement of the Hearing Panel to control its own processes...

In this case, the appellant alleged a number of procedural matters that compromised his capacity to be heard. In actuality, the Appeal Panel found that he was largely the author of his own misfortune and that the initial hearing was indeed fair in all aspects. (Emphasis added)

[30] In its reasons, under the subheading "Denial of Adjournment Requests", the Appeal Panel stated that it had "chosen to focus on the September 18, 2006, request and [would] discuss the cumulative impact of the denial of the other adjournment requests in a separate section on the right to counsel" (at para. 49). After reviewing some of the factors in the jurisprudence pertaining to the granting or refusal of an adjournment, the Appeal Panel cited the reasons of the Hearing Panel for refusing the September 18, 2006 adjournment (at para. 53). In para. 54 of its reasons, the Appeal Panel went on to hold that Igbinosun's conduct had contributed to the denial of some adjournments and that he had not been denied natural justice, but it did not specifically reference the adjournment request of September 18. The Appeal Panel concluded this portion of its reasons by saying that matters such as scheduling involved the exercise of discretion. It stated that the test to be applied was whether the Hearing Panel, in exercising its discretion, had taken into account legally impermissible considerations or otherwise acted arbitrarily. However, [page148] in this part of its reasons, the Appeal Panel did not come to a conclusion as to whether the Hearing Panel had failed to consider a relevant consideration or analyze whether, in refusing the September 18, 2006 adjournment, the Hearing Panel erred in principle and denied Igbinosun natural justice.

[31] Under the heading "Right to Counsel", by necessary implication, the Appeal Panel concluded that the refusal of an adjournment on September 18, 2006 was a denial of natural justice. As quoted above, the Appeal Panel excepted the adjournment on September 18 from its conclusion, in para. 79 of its reasons, that there had been no denial of natural justice to Ignobisun.

[32] In its concluding paragraph, however, the Appeal Panel made no exception to its conclusion that the procedural matters raised by Igbinosun did not amount to a denial of natural justice and engaged in no further meaningful analysis of the issue. The Appeal Panel did not explain the reason for not excepting the September 18 adjournment from its final conclusion.

[33] Reading the reasons as a whole, the Appeal Panel came to contradictory conclusions and failed to provide any reasons for its ultimate decision dismissing Igbinosun's assertion he had been denied natural justice when his lawyer's request for a brief adjournment on September 18 was refused.

(ii) Divisional Court

[34] On the issue of procedural fairness in relation to the September 18 adjournment, Molloy J., on behalf of the court, found the reasons of the Appeal Panel to be "perplexing" (at para. 52). She held that "[n]owhere in its decision does the Appeal Panel ever analyze whether the refusal of an adjournment on September 18, 2006 constituted a breach of natural justice or set out its conclusion in that regard". While I read the Appeal Panel's reasons as indicating that it came to a conclusion on this issue, I would agree with Molloy J. that the Appeal Panel did not give reasons for why it initially concluded that the refusal of an adjournment on September 18 constituted a breach of natural justice. The path to the Appeal Panel's later conclusion, that Igbinosun was not denied natural justice when Miguna's request for a brief adjournment on September 18, 2006, is not visible, even taking into account the expanded record. Appellate review is consequently not permitted.

[35] The Law Society submits that the decision whether to grant or refuse a request for an adjournment is a discretionary decision that is entitled to deference and that, having found the reasons of the Appeal Panel unsatisfactory, the Divisional Court failed to identify what error in principle or extraneous consideration [page149] the Hearing Panel relied upon in exercising its discretion to deny the adjournment on September 18. Instead, the Law Society submits that the Divisional Court engaged in a fresh exercise of discretion that amounted to impermissible second-guessing.

[36] I disagree. After summarizing the Appeal Panel's reasons, Molloy J. concluded that both the Appeal Panel and the Hearing Panel erred by failing to consider the lack of any prejudice from the minimal delay being requested on September 18, 2006. She further held that the Hearing Panel failed to balance the public interest in having the hearing concluded expeditiously against the very serious prejudice to Igbinosun of being forced to proceed at this point without counsel and that the Appeal Panel failed to complete its analysis on this issue.

[37] The errors of the Hearing Panel identified by the Divisional Court are two very important considerations recognized in the jurisprudence concerning whether to grant or refuse an adjournment. Reference may be made to Khimji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790, [2004] O.J. No. 320 (C.A.); Moudry v. Moudry, 2006 33542 (ON CA), [2006] O.J. No. 3957, 216 O.A.C. 84 (C.A.); R. v. Wood, 2005 13779 (ON CA), [2005] O.J. No. 1611, 196 C.C.C. (3d) 155 (C.A.) ("Wood"); R. v. Hazout, 2005 30050 (ON CA), [2005] O.J. No. 3550, 201 O.A.C. 235 (C.A.) ("Hazout"); R. v. Marzocchi, 2006 13096 (ON CA), [2006] O.J. No. 1648, 211 O.A.C. 2 (C.A.); Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523, [2005] O.J. No. 2097 (Div. Ct.); and Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497, 51 C.P.C. (6th) 326 (S.C.J.). A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.

[38] Recall that the Hearing Panel's reasons for refusing the adjournment, which are cited in the Appeal Panel's reasons, were: (a) the request for an adjournment had already been refused four [page150] days earlier; (b) the matter had been marked peremptory; (c) there was no certainty about when Miguna would be able to continue; and (d) the matter had been awaiting resolution for a long time. These reasons do not reflect a consideration of all the factors the circumstances of this case required and, particularly, the substantive factors related to the prejudice Igbinosun would experience if the request were denied.

[39] The Law Society submits that the issue of prejudice was taken into account by the Hearing Panel. The only prejudice that the Hearing Panel considered was the prejudice to the public interest in the efficient administration of its proceedings, i.e., that the matter had been awaiting resolution for a long time. The Hearing Panel did not consider the prejudice to Igbinosun of forcing him on without counsel nor weigh that prejudice against the public interest in having the matter proceed on September 18.

[40] While the Law Society argues that the expanded record before the Appeal Panel refutes the claim of prejudice to Igbinosun by being forced on without counsel, the Appeal Panel did not say this. The Law Society submits that, in regard to the expanded record, the Divisonal Court failed to consider the impact of Igbinosun's misrepresentation to the Hearing Panel concerning when he knew Lawlor was seeking to get off the record. However, the transcript indicates that Igbinosun's misrepresentation occurred after the Hearing Panel had refused to grant him an adjournment on September 18, 2006 and in the context of telling the Panel that he would seek judicial review of their decision. While it was clearly wrong for Igbinosun to try to mislead the Hearing Panel, his misrepresentation has no bearing on whether, at the time that the Hearing Panel refused his request for an adjournment, he was denied natural justice.

[41] The Law Society further submits that in analyzing the Appeal Panel's reasons, the Divisional Court did not take into account the fact that the September 18 continuation date was made peremptory on Igbinosun. I would disagree.

[42] Molloy J. addressed the peremptory nature of the September 18 continuation date in her reasons, at paras. 63-64, and, in effect, concluded that the Hearing Panel either ought not to have made the September 18 date peremptory or should have been more flexible about adjourning it. She stated [at paras. 63-64]:

The September 18, 2006 hearing date was set without Mr. Igbinosun's input, at a time when the Hearing Panel knew Mr. Lawlor intended to get off the record. I accept there is some fault attributable to Mr. Igbinosun for not participating in the teleconference and/or providing dates when he [page151] would be available to continue with the hearing. However, at this point, Mr. Lawlor was still on the record and Mr. Igbinosun had not consented to his removal. He clearly had not yet retained other counsel to represent him. He had been represented by counsel throughout the process before the Society and in the criminal proceedings against him. The Hearing Panel ought to have recognized that Mr. Igbinosun would be faced with the difficult task over the summer months of finding and retaining a lawyer who was prepared to step into a hearing already half-completed with a fixed and peremptory continuation date of September 18, 2006.

When Mr. Igbinosun did have an opportunity to address the issue [of the peremptory date of September 18] with the Panel on the occasion of Mr. Lawlor's removal from the record in July, 2006, and stated that he could not be ready to proceed for the September hearing date, he was advised he would have to bring a motion. The first date available to the Panel for that motion was only four days prior to the date set for the hearing. Again, this was not of Mr. Igbinosun's doing. He brought his motion at the earliest opportunity. The motion was denied. (Emphasis added)

[43] One of the purposes of making a hearing date peremptory is to further the public interest in the administration of justice by preventing delay and wasted costs. However, judicial discretion must still be exercised depending on the facts and circumstances of each case, as the overarching purpose of marking a date peremptory is to serve the interests of justice: Jourdain v. Ontario, 2008 22130 (ON SC), [2008] O.J. No. 1868, 167 A.C.W.S. (3d) 498 (S.C.J.), at para. 12, referring to the decision of the English Court of Appeal in Hytec Information Systems Ltd. v. Coventry City Council, [1997] 1 W.L.R. 1666 (C.A.), at pp. 1674-75 W.L.R. Molloy J. held that the Hearing Tribunal did not take account of the particular circumstances of this case when it relied on the peremptory nature of the September 18, 2006 hearing date as a basis for dismissing Miguna's request, among others, for a 48-hour adjournment.

[44] I would add that the Hearing Panel made the hearing date of September 18 peremptory on the Law Society as well as Igbinosun. It gave no reasons for doing so. The Hearing Panel inexplicably waited over three months, from March 3 to June 19, 2006 to hold a conference call to schedule the continuation of the hearing. In any event, if the Hearing Panel was concerned about Igbinosun bringing a further motion to stay the proceedings on account of undue delay, the Hearing Panel could have made it a condition of granting an adjournment of the peremptory date that the party seeking the adjournment could not include the period of the adjournment in any motion to stay the proceedings for undue delay, as it did when the October 24, 2005 peremptory date was finally adjourned.

[45] The Law Society submits that, at para. 65 of her reasons, Molloy J. impermissibly reanalyzed the question of whether the [page152] denial of an adjournment on September 18, 2006 was a denial of natural justice when she stated:

Whatever may have been Mr. Igbinosun's conduct on prior occasions, it is clear from the Appeal Panel's own Reasons, as well as from the transcripts of the hearing before the Hearing Panel, that on September 18, 2006, Mr. Igbinosun was prepared to proceed and had a lawyer willing to represent him. His lawyer had two brief prior commitments, but was prepared to work around those and to proceed immediately, with short recesses to accommodate his previously scheduled court appearances. As the Appeal Panel found, on September 18, Mr. Igbinosun "demonstrated a clear intention to proceed" and his counsel was "flexible" in attempting to accommodate his previous commitments with this hearing date.

[46] As I have indicated, the Divisional Court rightly held that both the Appeal Panel and the Hearing Panel erred in principle and identified their errors. In the circumstances, Molloy J. was entitled to consider whether Igbinosun's counsel's request for a brief adjournment should have been granted. She concluded that the brief adjournment ought to have been granted and that the Hearing Panel's refusal to do so amounted to a denial of natural justice. I see no error in principle in this decision and it is entitled to deference.

[47] This is not a situation as in Wood, where the hearing tribunal was entitled to draw the inference that the applicant was attempting to delay the hearing by causing a breakdown in his relationship with his counsel, nor is it a situation as in Hazout, where the applicant displayed a complete lack of diligence in finding counsel. Although everyone on the June 19 conference call became aware that Lawlor would seek to remove himself from the record, Lawlor and Igbinosun's actions were compatible with there being a retainer problem which might resolve itself. I say this because, although Lawlor threatened to get off the record on May 23, 2006, Lawlor did not seek to remove himself prior to the June 19, 2006 conference call to make a scheduling date, Igbinosun asked Lawlor to represent him on the call, Lawlor agreed to the September 18 date and, later, Igbinosun opposed Lawlor's removal as counsel of record.

[48] Igbinosun's original request for an adjournment was made well in advance of the scheduled hearing date. The fact that his motion was heard only four days before the hearing date was not due to any fault on his part. Ignobisun had counsel with him on September 18 who would have proceeded had he been given a recess at 2:00 p.m. that day. Miguna is not clear as to what he would have done about his motion in Barrie the following day. However, at the latest, he was prepared to proceed on September 20. These were very serious allegations and the potential consequence of a finding of misconduct was a loss of Igbinosun's [page153] livelihood. The desirability of having the matter determined on its merits was great. Igbinosun had clearly expressed his desire to be represented by counsel and exercised that right in all the other proceedings. The Law Society's case had been presented. Igbinosun was expected to testify and he wanted counsel to assist him and to protect him from inappropriate cross-examination. As Molloy J. noted, there was no discernible prejudice to the Law Society or its witnesses in granting a brief adjournment. The Hearing Panel gave no indication that it would not have been able to accommodate Igbinosun's request to continue the hearing on September 20 or possibly earlier. The Hearing Panel was required to balance the public interest in having the hearing concluded expeditiously against the prejudice to Igbinosun of being forced to proceed at this point without counsel, taking into consideration the context and circumstances of the case. It did not do so.

[49] In these circumstances, I would not interfere with Molloy J.'s conclusion that Igbinosun was denied natural justice when Miguna's request for a brief adjournment on September 18 was denied. I would hold that the Divisional Court did not err in setting aside the Appeal Panel's conclusion that the findings of professional misconduct against Igbinosun were not tainted by breaches of procedural fairness and natural justice.

(2) Did the Divisional Court err in setting aside the Appeal Panel's conclusion that the penalty phase of the hearing was not procedurally unfair?

[50] In view of my conclusion on the first issue, it is not strictly necessary for me to address this ground of appeal. However, for the sake of completeness and in the interests of providing guidance, I will do so.

[51] Before the Appeal Panel, Igbinosun argued that the Hearing Panel provided him with inadequate notice that it would be proceeding with the penalty phase of the hearing on September 20, 2006.

[52] The Appeal Panel, at para. 59 of its reasons, held, "It [is] clear that the Hearing Panel deemed the appellant to have abandoned the case." The Appeal Panel then referred to jurisprudence setting out the criteria to be considered in determining whether a matter has been abandoned. It mentioned: evidence of a serious intention to proceed; whether there is an arguable case; whether there is a reasonable excuse; and an examination of the conduct of the applicant. However, the Appeal Panel took the analysis no further and did not decide whether the Hearing Panel's conclusion that the appellant had abandoned his case was a palpable and overriding error. Instead, the Appeal Panel [page154] turned the issue around and held, at para. 60, "[a]t the risk of being repetitive, there is no merit to the implicit position of the appellant that he was compelled to abandon the matter in the circumstances".

[53] With respect to the penalty phase of the hearing, the Appeal Panel made the following comments [at paras. 46, 77-78]:

The Hearing Panel proceeded to the penalty phase in the absence of the appellant. It is clear on the record that the elapsed time between the end of the finding of misconduct with notification to the appellant and the onset of the penalty phase was less than half a working day. The Society noted that the rapid progression led to its not meeting the notice requirements for provision of the victim impact statements or the bill of costs to the appellant. As noted below in the discussion of the right to be heard in the penalty phase, there was a clear breach of the principles of natural justice. See Sussman Mortgage Funding Inc. v. Ontario (Superintendent of Financial Services), [2005] O.J. No. 4806 (ON. C.A.) . . .

The duty of fairness has recently been expanded by the Ontario Court of Appeal to consider the implications of denial of the right to speak to penalty. In the case of Sussman Mortgage Funding Inc. v. Ontario (Superintendent of Financial Services), [2005] O.J. No. 4806 (ON.C.A.), the Court of Appeal in a remarkably brief decision upheld the Divisional Court's decision, holding that an individual should be provided with the opportunity to present evidence and make submissions on penalty particularly when the implication is the possibility of the revocation of a licence. The error in law was based upon a failure to: (a) give the appellant an opportunity to make submissions as to penalty; (b) consider alternatives that could have been imposed and (c) review or consider the penalties imposed in similar cases. The Court of Appeal ordered that the penalty assessment proceed before a differently constituted tribunal who was to base its determinations on the findings already made by the Tribunal.

The appellant in this case was provided with notice of the Hearing Panel's intention to proceed to a full disposition of the matter prior to his abandonment of the case on September 18, 2006. This two-day notice was in contrast to the Sussman context where no notice was provided. Finally, consideration must be given to the fact that the date was set peremptory on the appellant meaning that he should have been prepared to lead all components of his case, including the penalty portion, on September 18, 2006. (Emphasis added)

[54] The above extracts indicate that, at para. 46, the Appeal Panel found that the Law Society gave Igbinosun less than half a day's notice of the penalty hearing and that this short notice resulted in a denial of natural justice in accordance with the Sussman decision. In para. 78, the Appeal Panel found that the Law Society gave Igbinosun two days' notice and distinguished the Sussman decision. It upheld the penalty of disbarment imposed by the Hearing Panel.

[55] Molloy J., at para. 46 of the Divisional Court's reasons, characterized the Appeal Panel's conclusion that Igbinosun received adequate notice of the penalty hearing as inexplicable, given its [page155] earlier comment, at para. 46 of the Appeal Panel's reasons, that "there was a clear breach of the principles of natural justice" by the Law Society in having failed to meet the notice requirements in its own Rules of Practice and Procedure for providing the victim impact statements and the bill of costs to Igbinosun.

[56] The Divisional Court also addressed the Appeal Panel's comment that the Hearing Panel implicitly concluded that Igbinosun had abandoned his appeal when the adjournment requests of his lawyer were refused. Molloy J. applied a standard of reasonableness to that aspect of the Hearing Panel's decision and stated, at para. 66:

It was not reasonable to conclude that Mr. Igbinosun's decision not to proceed without counsel constituted voluntary abandonment of his case. On the contrary, Mr. Ibginosun specifically advised the Hearing Panel that he could not proceed without counsel, and stated that he would be seeking judicial review of its decision to refuse the brief adjournment requested by his counsel.

[57] On the issue whether the Hearing Panel had acted fairly in relation to the penalty phase of the hearing, Molloy J. cited the jurisprudence holding that a tribunal's duty to act fairly will vary depending on the circumstances and that where an individual's livelihood is at stake, a higher standard of justice is required (at para. 66). In her opinion, it was not reasonable for the Hearing Panel to proceed immediately to the penalty phase. Although the hearing date was peremptory on both the Law Society and Igbinosun, counsel for the Law Society did not expect the penalty phase to occur immediately. Without the Hearing Panel's waiver of the ten-day notice requirement for receipt of victim impact statements, the earliest the Society could have proceeded was September 29. Molloy J. noted that there was no urgency requiring the penalty phase to proceed so quickly. The evidence at a penalty hearing is different from the evidence at a misconduct hearing and typically takes time to prepare. The potentially serious consequences of the hearing to Igbinosun and lack of any prejudice to the Law Society warranted following the normal timelines. In her view, at para. 51:

Mr. Igbinosun was denied any meaningful opportunity to be heard on the penalty to be imposed against him. This was a very serious matter, with potentially dire consequences for Mr. Igbinosun. There was no demonstrated prejudice to the Society if the penalty phase were to proceed at its normal pace with full notice to Mr. Igbinosun and a meaningful opportunity to prepare, present evidence and make submissions. Proceeding with the imposition of penalty in this manner was a clear breach of natural justice and the penalty imposed cannot stand. [page156]

[58] I agree with the comments of Molloy J. While the Law Society's rules do say that the time frame can be abridged in the interests of justice, I do not see how the interests of justice were served here by abridging the time.

[59] The Law Society appeals on the basis that the Divisional Court failed to have regard to s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA") in finding that further notice ought to have been given to Igbinosun of the penalty phase of the proceedings.

[60] Sections 6 and 7 of the SPPA read, in part, as follows:

6(1) The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal. . . . . .

(3) A notice of an oral hearing shall include, (a) a statement of the time, place and purpose of the hearing; and (b) a statement that if the party notified does not attend at the hearing, the tribunal may proceed in the party's absence and the party will not be entitled to any further notice in the proceeding. . . . . .

7(1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

[61] Igbinosun had notice of a proceeding to deal with complaints of misconduct. The notice did not say what jeopardy Igbinosun would face in the event of a finding of misconduct. Nor did the notice say that in the event of a finding of guilt, the Law Society would proceed against him with respect to the penalty as well. It was not reasonable for Igbinosun to expect that the penalty phase of the hearing would begin immediately after the liability phase. As noted by Molloy J., even counsel for the Law Society was surprised that the penalty phase began so quickly.

[62] Natural justice requires that reasonable notice of a proceeding be given to all parties to that proceeding. This is not an onerous requirement. As Molloy J. held, while the Law Society did give Igbinosun some notice of the penalty phase of the hearing, that notice was not reasonable. This unreasonableness is further indicated by the fact that the Hearing Panel had to dispense with the Law Society's own notice requirements regarding the disclosure of victim impact statements in order to hold the penalty hearing when it did.

[63] While the reasons of the Divisional Court do not address the SPPA, the Divisional Court did not err in concluding that [page157] Igbinosun was entitled to reasonable notice and that he did not receive reasonable notice of the penalty phase of the hearing. As indicated in s. 6(3) of the SPPA, notice of a hearing must include both the purpose of the hearing and a statement that a failure to attend the hearing may result in the hearing proceeding in the party's absence. The notice supplied to Igbinosun did not disclose that part of the purpose of the hearing was to determine Igbinosun's punishment should he be found guilty. The Hearing Panel erred in proceeding to the penalty phase as it did, as Igbinosun had not received proper notice of this aspect of the hearing, and thus could not have abandoned his right to participate in it.

[64] Further, the SPPA cannot support the Hearing Panel's decision to dispense with the requirement that Igbinosun receive the victim impact statements ten days prior to the penalty phase of the hearing. Pursuant to s. 61.2(4) of the Law Society Act, R.S.O. 1990, c. L.8, in the event that the rules of practice and procedure adopted by the Law Society conflict with the provisions of the SPPA, the rules adopted by the Law Society are to prevail. Thus, the SPPA cannot function so as to entitle the Law Society to dispense with its own rule regarding the timely disclosure of victim impact statements.

[65] For the reasons given above, I would uphold the decision of the Divisional Court remitting both the Law Society's application alleging professional misconduct and, if necessary, the penalty phase of such a hearing back to a newly constituted hearing panel of the Law Society for a full hearing.

(3) The issue of undue delay

[66] Although the issue had not been raised by Igbinosun, the Appeal Panel held that the delay of some six years in proceeding against Igbinosun had not resulted in prejudice of a type that would warrant a stay of proceedings. It held that any prejudice which Igbinosun suffered was offset by the public interest in having these serious matters addressed. After making these findings, the Appeal Panel dismissed the appeal.

[67] On the issue whether a stay should have been granted, Molloy J., on behalf of the majority on this issue, declined to interfere with the Appeal Panel's refusal to grant a stay of proceedings on the ground of delay. As noted by Molloy J., on Igbinosun's appeal to the Appeal Panel, he did not allege any errors of law in the Hearing Panel's decision denying the stay of proceedings because of delay. He instead raised the issue of the refusal to stay the proceedings in the context of allegations of bias on the part of the Hearing Panel. The Appeal Panel, at [page158] para. 80, found this to be an unacceptable collateral attack, but went on to address the merits of the issue anyway. Molloy J. saw "considerable merit" in the Law Society's argument that Igbinosun should not be permitted to raise the delay issue on appeal, since the right of appeal is only from decisions of the Appeal Panel (at para. 71). However, she observed that the Appeal Panel had "proceeded to consider the issue of delay on its merits" (at para. 72). Molloy J. stated: "[i]t seems to me that since the Appeal Panel purported to rule on the issue of delay, even though it was not required to do so, it is open to Mr. Igbinosun to appeal from the Appeal Panel's findings in that regard" (at para. 73).

[68] Molloy J. criticized the Appeal Panel's decision to analyze the delay issue afresh, instead of reviewing the Hearing Panel's decision on the issue on a standard of correctness, but found that nothing turned on that failure because the Appeal Panel had come to the same conclusion. She held, at paras. 76-77:

Even if I were to take the further step of considering the Hearing Panel's Reasons on this point, in light of the Appeal Panel's failure to do so, I would come to the same conclusion. This was a close case, as is amply demonstrated by the compelling reasons of the Hearing Panel Chair in dissent. However, I see no error in the reasoning of the majority of the Hearing Panel. It considered the correct principles, weighed the relevant factors and exercised its discretion in favour of a determination of the complaints on their merits rather than dismissing for delay. A rational case can be made for the opposite conclusion, again as is demonstrated by the dissenting Reasons. However, it is not the function of this Court to choose which of the two sets of reasons it prefers. The decision of the majority of the Hearing Panel was one of a reasonable range of options open to the Panel and, as such, is entitled to deference . . . .

The Hearing Panel was not bound by the decision of the trial judge staying the criminal charges, nor was there any error by the Hearing Panel in failing to place any weight on the factual findings of the trial judge in that context. The Hearing Panel was required to make its own findings of fact with respect to the issue of delay, based on the evidence before it and in the context of its own statutory obligations.

[69] In the result, Molloy J. remitted the prosecution of the complaints to a new hearing panel to hear afresh. She ruled that if Igbinosun chooses to pursue another stay application on the basis of delay, "the Hearing Panel is bound by the findings of the initial Hearing Panel with respect to the effects of the delay up to, but not after, February 27, 2006" (at para. 81).

[70] Pitt J., dissenting in the Divisional Court on the issue of delay only, would have ordered a stay. He referred to the reasons of Nadeau J. for staying the charges in the criminal proceedings against Igbinosun under s. 11(b) of the Charter and his finding of prejudice, both inferred and actual, to the accused from the delay. Pitt J. went on to state, at paras. 91-92: [page159]

This is a unique case in that there does not appear to be any case in which a related charge has been brought before an administrative Tribunal so long after a Superior Court stayed the criminal charge for delay having made a finding of significant prejudice. The granting of a stay in these circumstances would not represent the sort of 'far reaching' modification of the common law that Cory J. referred to in Hill.

There is some evidence that the Law Society had a change of heart about closing the files shortly after the dismissal of the criminal charges, only after a lawyer representing the complainants in a civil matter contacted the Law Society about the civil proceedings. Contact with counsel in the civil litigation clearly seemed to have mitigated the Society's well-documented concern about the legal implications of such long delay.

I believe and I find that the Tribunal's exercise of discretion in denying the stay on the grounds of delay was unreasonable. I would have stayed the proceedings.

[71] In the result, the Divisional Court quashed the decision of the Appeal Panel and remitted the matter back to a differently constituted panel for a full hearing. On December 4, 2008, this court granted leave to appeal from the Divisional Court's decision.

[72] There is no reason for this court to revisit Molloy J.'s determination that the new hearing panel is bound by the previous panel's findings on the effects of the delay for the period from 1999 to February 27, 2006, the date the hearing commenced. Molloy J. was correct to find that the Appeal Panel should have reviewed the decision of the Hearing Panel on this matter, rather than engage in its own analysis. Further, there is no reason to interfere with her conclusion on the merits, namely, that the Hearing Panel's refusal to stay proceedings was correct. Accordingly, the only issue of any concern is the propriety of ordering a new hearing on liability and penalty, but binding the new hearing panel from addressing the effects of the delay in the proceedings from 1999 to February 27, 2006.

[73] Section 134(1)(c) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that in deciding an appeal, a court may "make any other order or decision that is considered just". As noted by the Appeal Panel, at para. 80, Igbinosun did not actually appeal from the Hearing Panel's refusal to grant a stay of proceedings. Instead, he attacked this ruling collaterally by claiming that the Hearing Panel was biased and refused to grant the stay for this reason. At the Divisional Court, Igbinosun appealed on the delay issue itself and did not appeal from the Appeal Panel's finding that there was no reasonable apprehension of bias in the Hearing Panel's conduct or reasons. Indeed, the breaches of natural justice requiring a new hearing in this matter all occurred after the Hearing Panel's refusal to grant a stay. [page160]

[74] Since Igbinosun never properly appealed the Hearing Panel's finding on the delay issue to the Appeal Panel, there is no injustice in refusing to allow him to re-argue the matter in a new hearing.

[75] I would note that the order of Molloy J. does not preclude Igbinosun from bringing a new motion to stay proceedings on the basis of undue delay. Over three years have passed since the Hearing Panel refused to stay the proceedings against him. Igbinosun may wish to argue that this subsequent delay, when considered in the context of the overall time frame, has resulted in prejudice to him sufficient to warrant a stay. The effect of the Divisional Court's order is simply to preclude Igbinosun from re-arguing that, at the time of the Hearing Panel's ruling on the issue, a stay was warranted. Of course, my observations on this matter should not be taken as expressing any position on the potential merits of any future stay application brought by Igbinosun.

[76] For the reasons given above, I would dismiss Igbinosun's appeal.

Conclusion

[77] In my opinion, there is no basis upon which to interfere with the decision of the Divisional Court. I would dismiss the Law Society's appeal and uphold the Divisional Court's order remitting this matter back to a newly constituted hearing panel, which will make fresh determinations on Igbinosun's liability and, if necessary, the appropriate punishment. I would also dismiss Igbinosun's appeal and uphold the order of the Divisional Court binding the new hearing panel to the findings of the initial Hearing Panel with respect to the effects of the delay up to February 27, 2006.

Costs

[78] Mr. Igbinosun is entitled to his costs. If the parties cannot agree, Mr. Igbinosun shall have ten days from these reasons to make his submissions as to costs and the Law Society shall have ten days to respond.

Appeals dismissed.

Notes

[^1]: On March 6, 2006, Igbinosun e-mailed Lawlor and asked him to advise the Hearing Panel that he (Lawlor) was not available to continue with the hearing until after June 30, 2006. Lawlor responded that he could not tell the Hearing Panel this because there were times in March, April and May when he was in fact available. While the Law Society claims that this e-mail demonstrates that Igbinosun was asking Lawlor to lie to the panel, the evidence does not safely permit such a conclusion. Given that Lawlor has unavailable from April 22 - May 8, 2006, the entire month of June and a number of other individual dates, Igbinosun may have believed that Lawlor's schedule precluded him from taking part in the hearing until July. In any event, Lawlor's availabilities prior to June ended up being moot.

[^2]: The reasons given by the chair of the panel were: (1) Igbinosun had three months' notice of the date to which the hearing had been adjourned and the fact that he would be required to retain counsel or to represent himself; (2) he gave no evidence of taking any steps to retain new counsel; (3) he had no realistic plan to retain counsel; (4) the history of delay and requests for adjornments; (5) a history of counsel getting off the record; and (6) he put forward no date to continue the hearing.

[^3]: The e-mails between Igbinosun and Lawlor concerning when he planned to get off the record appear to have been disclosed when Igbinosun alleged incompetent assistance of counsel before the Appeal Panel.