Dioguardi Tax Law et al. v. The Law Society of Upper Canada et al.

[Indexed as: Dioguardi Tax Law v. Law Society of Upper Canada]

Ontario Reports

Court of Appeal for Ontario,

MacPherson, Simmons and Lauwers JJ.A.

July 5, 2016

133 O.R. (3d) 151 | 2016 ONCA 531

Case Summary

Professions — Barristers and solicitors — Solicitor-client privilege — Law firm applying for order protecting confidentiality of solicitor-client privileged information of its clients who had lodged complaints against it and for order that parts of Law Society Act relating to Law Society's investigation powers violate ss. 7 and 8 of Charter — Application premature as proceedings before Law Society Tribunal had not yet run their course — Canadian Charter of Rights and Freedoms, ss. 7, 8.

The appellant law firm and lawyers brought an application for an order protecting the confidentiality of solicitor-client privileged information of their clients who had lodged complaints against them and an order declaring that the legislative scheme in the Law Society Act, R.S.O. 1990, c. L.8 relating to the LSUC's investigation powers violates ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. The application was dismissed as premature. The appellants appealed.

Held, the appeal should be dismissed.

The application judge did not err in finding that the application was premature as the proceedings before the LSUC tribunal had not yet run their course and as the tribunal should be allowed to decide whether the appellants' constitutional arguments were well-founded. [page152]

Canada (Attorney General) v. Chambre des notaires du Québec, [2016] S.C.J. No. 20, 2016 SCC 20, 356 C.R.R. (2d) 150, [2016] 5 C.T.C. 1, 483 N.R. 148, 100 Admin. L.R. (5th) 222, 401 D.L.R. (4th) 1, 2016EXP-1772, J.E. 2016-973, EYB 2016-266337, 265 A.C.W.S. (3d) 1082; M.N.R. v. Thompson, [2016] S.C.J. No. 21, 2016 SCC 21, [2016] 5 C.T.C. 36, 356 C.R.R. (2d) 135, 483 N.R. 228, 100 Admin. L.R. (5th) 185, 401 D.L.R. (4th) 38, 2016EXP-1771, J.E. 2016-972, EYB 2016-266336, 265 A.C.W.S. (3d) 1083, consd

Other cases referred to

C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J. No. 274, 2010 FCA 61, [2011] 2 F.C.R. 332, 400 N.R. 367, 2011EXP-3678, 185 A.C.W.S. (3d) 914; DioGuardi Tax Law v. Law Society of Upper Canada, [2015] O.J. No. 2963, 2015 ONSC 3430, 337 C.R.R. (2d) 101 (S.C.J.); Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 295 O.A.C. 164, 40 Admin. L.R. (5th) 307, 355 D.L.R. (4th) 518, 220 A.C.W.S. (3d) 240

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 8

Law Society Act, R.S.O. 1990, c. L.8 [as am.]

APPEAL from the judgment of Belobaba J., [2015] O.J. No. 2963, 2015 ONSC 3430 (S.C.J.).

Melvyn L. Solman and Matthew Valitutti, for applicants.

Glen M. Stuart, for respondent Law Society of Upper Canada.

Sean Hanley and Hayley Pitcher, for respondent Attorney General for Ontario.

[1] Endorsement BY THE COURT: -- The appellant lawyers and law firm appeal the judgment of Belobaba J. of the Superior Court of Justice dated June 9, 2015 [[2015] O.J. No. 2963, 2015 ONSC 3430 (S.C.J.)] dismissing the appellants' application for (1) an order protecting the confidentiality of solicitor-client privileged information of its clients who have lodged complaints against them; (2) an order declaring that the legislative scheme in the Law Society Act, R.S.O. 1990, c. L.8 related to the Law Society of Upper Canada's investigation powers violated the Canadian Charter of Rights and Freedoms, ss. 7 and 8 rights of these clients/ complainants; and (3) an order granting the appellants public interest standing to make the Charter arguments on behalf of all clients/complainants in Ontario, if necessary.

[2] The application judge determined that the application was premature [at paras. 1 and 14]:

Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed or until the available effective remedies are exhausted.

. . . . . [page153]

In short, there is every good reason to allow the administrative process in this case to run its course. The Law Society Tribunal should be allowed to decide at first instance whether the constitutional arguments advanced herein are well-founded and, in particular whether there is any room in the legislative design and policy of the Act for the specific client-focused protections being sought by the applicants. The Law Society Tribunal has the expertise and the experience to consider the applicants' submissions and proposed reforms and make the required determinations at first instance. And the court (should the matter get to court) would benefit greatly from this expert tribunal's reasons and decision.

[3] The appellants raise the same issues on this appeal that they advanced on the application. At the appeal hearing, we called on the parties to address the issue of prematurity.

[4] Our conclusion on this issue is simple: we agree with the application judge's conclusion and with his reasons in support of the conclusion.

[5] Since the application judge's decision was released, the Supreme Court of Canada rendered decisions in Canada (Attorney General) v. Chambre des notaires du Québec, [2016] S.C.J. No. 20, 2016 SCC 20 and M.N.R. v. Thompson, [2016] S.C.J. No. 21, 2016 SCC 21.

[6] The appellants were granted leave to file a supplementary factum after these decisions were released. In their factum, the appellants assert that in Thompson the Supreme Court has articulated a clear directive to the courts to "facilitate" (para. 39) the requirement to ensure that the client is given the opportunity to protect his or her own solicitor-client privilege and that, therefore, an application direct to the superior court is the proper route for raising this issue.

[7] We disagree. There is nothing in Thompson or Chambre des Notaires to suggest that the superior court (and this court) should determine the merits of their Charter challenge and obtain a remedy before exhausting their administrative remedies. The application judge was correct to follow the decisions in Volochay v. College of Massage Therapists of Ontario (2012), 2012 ONCA 541, 111 O.R. (3d) 561, [2012] O.J. No. 3871 (C.A.), at paras. 68-71; and C.B. Powell Ltd. v. Canada (Border Services Agency), [2010] F.C.J. No. 274, 2010 FCA 61, at para. 32, on this issue.

[8] The appellants also seek leave to appeal the application judge's costs awards of $20,000 to the Law Society of Upper Canada and $30,000 to the Attorney General of Ontario.

[9] We see no reason to interfere with these awards, especially against the backdrop of the appellants' bill of costs of $100,000 for the application.

[10] The appeal is dismissed. The respondents, Law Society of Upper Canada and Attorney General of Ontario, are entitled to [page154] their costs of the appeal fixed at $12,500 and $7,500, respectively, inclusive of disbursements and HST.

Appeal dismissed.

End of Document