COURT OF APPEAL FOR ONTARIO

CITATION: Coady v. The Law Society of Upper Canada, 2015 ONCA 876

DATE: 20151210

DOCKET: M38163

van Rensburg J.A. (In Chambers)

BETWEEN

Mary Martha Coady

Applicant

and

The Law Society of Upper Canada

Respondent

Mary Martha Coady, acting in person

Jaan E. Lilles, for the respondent

Heard: December 2, 2015

ENDORSEMENT

[1] Martha Coady was involved in contentious discipline proceedings with the Law Society of Upper Canada (the “Law Society”) for several years. The proceedings resulted in findings of professional misconduct and the revocation of Ms. Coady’s licence to practise.

[2] In the course of her discipline proceedings before the Law Society Hearing Panel – in fact, on the second day of evidence in her conduct hearing[^1]– Ms. Coady brought a motion for a stay of proceedings. She argued that the Hearing Panel had no jurisdiction to commence the conduct hearing because the Law Society failed to comply with the mandatory preconditions for a hearing, including obtaining the authorization of its Proceedings Authorization Committee. Based on this, she argues that the discipline proceeding was a nullity. I refer to this as the “jurisdiction issue”.

[3] A stay of proceedings was refused by the Hearing Panel on February 26, 2008. Ms. Coady’s appeal of this decision to the Appeal Panel was quashed on motion by the Law Society on July 28, 2008. The Appeal Panel concluded that the appeal was not from a final decision or order within the meaning of s. 49.32 of the Law Society Act, R.S.O. 1990, c. L.8, and that it lacked jurisdiction to hear the appeal. The Appeal Panel also concluded that it remained open to Ms. Coady to raise the issue of jurisdiction before the Appeal Panel, should the Hearing Panel complete the proceedings against her and make findings of professional misconduct.

[4] Ms. Coady appealed to the Divisional Court. The appeal was quashed by order dated October 20, 2009 (the “2009 Divisional Court Order”). In his reasons for decision, Dambrot J., for a three judge panel, referred to s. 49.38 of the Law Society Act, which provides for an appeal to the Divisional Court from a final decision or order of the Appeal Panel. He held that the Appeal Panel’s decision quashing the appeal of an interlocutory decision was itself interlocutory. As such, there was no right to appeal to the Divisional Court. Dambrot J. reminded Ms. Coady of the Appeal Panel’s conclusion that she could raise the issue of jurisdiction before the Appeal Panel if the Hearing Panel made findings of misconduct against her.

[5] Ms. Coady decided to challenge the 2009 Divisional Court Order, and to pursue her jurisdiction argument before this court. She brought a motion before a single judge of this court, which was originally returnable November 10, 2009. By that time, Ms. Coady had been found guilty of professional misconduct (on June 3, 2009), and the penalty stage of the proceedings was underway (resulting in the revocation of her licence on January 8, 2010).

[6] In her November 2009 motion to this court, Ms. Coady requested leave “to have a special case determined in the first instance by the Court of Appeal” (purportedly under rule 22.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194), relying on an agreed statement of facts that was before the Hearing Panel in 2007. She also sought directions in respect of a motion for leave to appeal the 2009 Divisional Court Order. The motion also sought a stay of the discipline proceedings pending disposition of the motion.

[7] The motion was not heard in November 2009, and after a number of adjournments, the last of which was on January 15, 2010, Ms. Coady took no further steps to advance her motion.

[8] Ms. Coady’s inaction in respect of the November 2009 motion is understandable, as by then she had continued to argue the jurisdiction issue in the discipline proceedings, including in her appeal to the Appeal Panel and in her appeal of the decision of the Appeal Panel, dated April 11, 2012, to the Divisional Court. Eventually, the Divisional Court dismissed her appeal (the “2014 Divisional Court Order”). Nordheimer J., for a three judge panel, determined the issue in his reasons for decision of December 4, 2014, dismissing Ms. Coady’s appeal: Coady v. Law Society of Upper Canada, 2014 ONSC 5711, [2014] O.J. No. 4664, at paras. 6 to 10.

[9] On July 28, 2015, the Registrar of this court notified Ms. Coady that since her November 2009 motion had not been pursued in a timely manner, the motion was scheduled for a hearing to determine its status on August 10, 2015. That day, after noting that Ms. Coady persisted in pursuing the relief sought in the motion, Blair J.A. refused to dismiss the motion as abandoned, and adjourned the motion to December 2, 2015 peremptory to Ms. Coady.

[10] It is this motion, originally filed in November 2009, and seeking “leave to have a special case determined in the first instance” by this court, and directions for leave to appeal the 2009 Divisional Court Order, as well as other relief, that I must now determine.

[11] For the reasons that follow, the motion is dismissed.

Motion for Court of Appeal to Hear a Special Case

[12] Rule 22 of the Rules of Civil Procedure provides for parties to move before a judge to state a special case. Rule 22.01 provides:

(1) Where the parties to a proceeding concur in stating a question of law in the form of a special case for the opinion of the court, any party may move before a judge to have the special case determined.

(2) Where the judge is satisfied that the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs, the judge may hear and determine the special case.

[13] An order can only be made where the parties to the proceeding concur in stating a question of law in the form of a special case for the opinion of the court, and where the judge is satisfied that the test for leave under rule 22.01(2) is met. In this case, there is no agreement by the Law Society to state a case.

[14] Ms. Coady relies on rule 22.03(1) which provides as follows:

A motion under rule 22.01 may be made to a judge of the Court of Appeal for leave to have a special case determined in the first instance by that court and the judge may grant leave where subrule 22.01 (2) is satisfied and where the special case raises an issue in respect of which,

(a) there are conflicting decisions of judges in Ontario and there is no decision of an appellate court in Ontario;

(b) there is a conflict between decisions of an appellate court in Ontario and an appellate court of another province, or between decisions of appellate courts of two or more other provinces; or

(c) one of the parties seeks to establish that a decision of an appellate court in Ontario should not be followed.

[15] Rule 22.04 prescribes the form for a special case (Form 22A) which must (a) set out the material facts, agreed on by the parties, that are necessary to determine the question stated; (b) refer to and include a copy of any documents necessary to determine the question; (c) set out the relief sought, as agreed on by the parties, on the determination of the question of law; and (d) be signed by the lawyers for all the parties in the proceeding. No such form of special case has been filed in this case, as the Law Society does not agree with this procedure.

[16] In her submissions, Ms. Coady makes a number of arguments directed to meeting the test under rule 22.03(1)(a) and (b) for determination by this court of the jurisdiction issue. Ms. Coady asserts that she can look directly to rule 22.03, as all that is required is to satisfy one of the three criteria under rule 22.03(1) (a), (b) or (c) She argues that it is not necessary for the parties to agree to state a case, provided that they agree on the relevant facts, and she contends that it is sufficient if the parties, at some time in the past, agreed to certain facts. In this regard, she proposes to put the jurisdiction issue before this court, using the Agreed Statement of Facts signed by the parties before the Hearing Panel in December 2007.

[17] Ms. Coady is wrong in her interpretation of the relevant rules. Rule 22 requires that the parties must agree to invoke the special case procedure for determination of a point of law. They must agree on the point of law, and they must submit their stated case with the elements required by the prescribed form. These are the requirements for all special cases stated to a court, including this court. Only if these conditions are met may the parties move directly to the Court of Appeal, in which case they will need to meet the additional test set out in rule 22.03(1)(a), (b) or (c): see Seed v. Delhey (1989), 1989 CanLII 4102 (ON CA), 67 O.R. (2d) 317 (C.A.)

[18] As the necessary preconditions are absent, Ms. Coady’s motion under rule 22 to state a special case to determine the jurisdiction issue is dismissed.

Motion for Directions on Leave to Appeal

[19] Ms. Coady seeks directions with respect to a motion for leave to appeal the 2009 Divisional Court Order. In particular, she asks that the motion be heard by a bilingual panel. There is, however, no pending motion for leave to appeal (which would have to be brought in writing before a three judge panel).

[20] The Law Society asserts that the motion for directions should be dismissed because there is no pending motion for leave to appeal. Further, the Law Society argues that, as a result of Ms. Coady’s delay and the intervening developments in her proceedings with the Law Society, any motion for leave to appeal the 2009 Divisional Court Order should not be permitted to proceed.

[21] I agree with the Law Society’s position. As there is no pending motion for leave to appeal the 2009 Divisional Court Order, no directions can be given, and the issues raised by the proposed appeal have been overtaken by the further developments in the discipline proceedings. Ms. Coady attempted to litigate the jurisdiction issue before the Appeal Panel and then through to the Court of Appeal in 2009, following the refusal of a stay by the Hearing Panel in her discipline proceedings. The argument that the appeals to the Appeal Panel and to the Divisional Court ought not to have been quashed, so as to permit the determination of the jurisdiction issue, has been rendered moot. Ms. Coady has now argued the jurisdiction issue before both the Appeal Panel and the Divisional Court, in a final and not interlocutory context. There is simply no basis for any motion for leave to appeal the 2009 Divisional Court Order at this time.

[22] In the course of her argument in this motion, Ms. Coady also asked that the court extend the time so that she can bring a motion for leave to appeal the 2014 Divisional Court Order. The Law Society opposed the request.

[23] The materials recently filed in respect of this motion disclose that Ms. Coady attempted to file a motion returnable November 27, 2014 for directions, including an extension of time for leave to appeal the 2014 Divisional Court Order. That motion was never scheduled and the materials were returned to her as deficient. Despite communications from counsel for the Law Society over the next several months, Ms. Coady did not take any steps to bring forth that motion, with the result that neither a motion for leave to appeal the 2014 Divisional Court Order, nor a motion to extend time to do so, is before this court.

[24] The Law Society objects to any relief being granted in respect of a motion that is not properly before the court.

[25] I am not prepared to address any request for an extension of time for leave to appeal the 2014 Divisional Court Order. The motion is not properly before the court, the record is incomplete and the question was raised only indirectly in response to this motion.

Disposition

[26] For these reasons, Ms. Coady’s motion under rule 22 and for directions in respect of a proposed motion for leave to appeal the 2009 Divisional Court Order is dismissed.

[27] The Law Society is entitled to its costs of this motion. If the parties are unable to agree on the amount, they may exchange and file with the court within 30 days written submissions, limited to three pages each, not including the Law Society’s bill of costs.

“K. van Rensburg J.A.”

[^1]: This was the second hearing panel to consider the matter. The first hearing began in 2002, and ended when the Hearing Panel members recused themselves. The new Hearing Panel was constituted in November 2007.