COURT FILE NO.: 253/03

DATE: 20030501

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: M. Martha Coady, Applicant; and The Law Society of Upper Canada, Respondent;

HEARD: April 28, 2003

BEFORE: Lane, J.

COUNSEL: M. Martha Coady, Applicant, in person; Deborah McPhadden, for the Respondent.

E N D O R S E M E N T

[1] This is an application by Ms. Coady for leave, on grounds of urgency, to have this application for judicial review heard by a single judge of this court at once in order to prevent a panel of the Discipline Committee of the respondent from continuing with an on-going hearing. It is submitted that the delay necessary to have the application heard by a full panel will cause a miscarriage of justice because the Discipline Committee panel has said that it will not stop the hearing until the full court can hear the matter. At the conclusion of the argument, I reserved judgment and directed that the hearing would not proceed until judgment was delivered.

[2] The application was served about 9:30 a.m. on the morning of April 28, 2003, in or about the hearing room in which the Discipline Committee panel was about to resume the hearing. It was returnable before this court at 10 a.m. the same day. The respondent appeared on thirty minutes notice without the opportunity to file material. It did not, however, seek an adjournment, but simply argued the matter on the material available.

[3] This court has authority to hear an application on an urgent basis pursuant to section 6(2) of the Judicial Review Procedure Act where urgency is shown and the delay required for an application to the Divisional Court is likely to involve a failure of justice.

[4] In the present case, the applicant is the subject of disciplinary proceedings before a panel of the Discipline Committee of the respondent based on Notices dated July 31, 2000 and March 13, 2001. Hearings were held on these notices between November 26, 2001 and January 7 and 8, 2002, when it appears that the Committee reached a decision allowing the applicant to resign. The applicant then moved the Committee to reconsider and hearings on that motion took place on two days in July, 2002, two more in August, on December 5, 2002 and were scheduled to resume for three days commencing April 28, 2003.

[5] The applicant’s motion before the Discipline Committee is based upon several allegations, many of them intertwined with disputed facts. Her main allegation presented to me is that there has never been any authority for the respondent to launch proceedings against her at all. This is based upon the interpretation she places upon Regulation 708 made under The Law Society Act and the majority decision of Convocation in the case of Angela Codina. In that case Convocation quashed the proceedings against Ms. Codina because she had met the burden of showing a prima facie failure of the Society to meet the requirements of section 9(1) of Regulation 708, and the Society had not brought evidence to meet her case on the point.

[6] Section 9(1) provides that where information comes to the Society as to possible misconduct of a member, the Secretary is to investigate, and “where in his or her opinion there are reasonable grounds for so doing, shall refer the matter [to the Discipline Committee]”. The Secretary’s function at this point in the procedure is quasi-judicial[^1]. The point in Codina, as I read the decision, was that it was shown to be doubtful that the Secretary had actually personally formed the opinion required; he had prepared nothing in writing, was not called and there was no other evidence brought to show that he had done so. The opinion being the mandatory foundation of the procedure for authorizing the prosecution, it had never been properly authorized. Therefore, “The decision of Convocation is that the Society lacked jurisdiction to proceed with the complaints because of its failure to comply with s. 9(1) of Regulation 708 …”.[^2] The decision of the Discipline Committee was set aside.

[7] The present applicant submits that the failure of the respondent to provide evidence on the procedure used to authorize the prosecution of the complaints against her is similar to the Codina case and should have the same result. Counsel for the respondent submitted that the hearing against Ms. Codina was over when Convocation dealt with it, but there is still the opportunity for the Society to present this evidence in the ongoing hearings on the applicant’s motion to reconsider. It is a live issue; the evidentiary gap may yet be filled; and the panel has decided nothing.

[8] The applicant submitted that there are many other issues requiring this court’s intervention. The original hearing ended, she says, when she was unduly pressured by her own counsel, to the point of duress, to enter into an agreed statement of facts which amounted to a plea of guilty, contrary to her insistence to counsel that she wished to contest the charges. She says that she was inadequately represented by that counsel for reasons she did not then know, but now knows, including the existence of a conflict of interest on the part of his firm. There will be some witnesses that the applicant says she will call who are Benchers or staff of the Society and their credibility will be an issue. In such a case, the prosecution ought to be conducted by independent counsel because employees of the Society cannot exercise independent prosecutorial judgment. She asserts that the procedure adopted by the Society was faulty in another way: the authorization documents were signed by a Bencher who is a partner in the law firm which had acted for the applicant in three business files from which complaints before the Committee arose. She further submitted that certain remarks of members of the panel during the hearings were evidence of bias, but she did not take me to the transcripts to demonstrate this. After counsel for the respondent had responded, the applicant sought to read from the transcripts, but I ruled that she could not do so in reply as the matter was not first raised by the respondent.

[9] The Committee is in the midst of hearing the applicant’s own motion for reconsideration. It is incongruous that she now seeks to prevent it from deciding a motion she brought herself. Nevertheless, in an appropriate case it can be done. When litigants before administrative tribunals seek the court’s intervention in the midst of the litigation, the court is reluctant to do so except in very extraordinary circumstances. Experience has shown that the best course is to permit the hearings to be completed and then review the entire matter. Many apparent problems disappear in the light of further evidence; sometimes the result makes the application unnecessary.

[10] In Ontario College of Art v Ontario (Human Rights Commission) (1993) 1993 3430 (ON SCDC), 11 O.R. (3rd) 798 (Divisional Court) Callaghan, C.J., after referring to authorities, said:

These decisions follow a long line of authority which has indicated the need to avoid a piecemeal approach to judicial review of administrative action. The board of inquiry in this case has jurisdiction to entertain and determine any of the issues that have been … advanced.. . This includes her argument that bias has tainted the appointment of the board of inquiry. The board of inquiry also, of course, has the jurisdiction to consider the allegation of delay as it has affected these proceedings.

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.

[11] These are the principles upon which I must decide this application. To grant the relief sought by Ms. Coady would further fragment an already difficult hearing which has now spread over some 16 months. While the existence of a fatal jurisdictional defect is a good reason to depart from the principles set out by Callaghan C.J.[^3], the evidence is not necessarily all in as to the role of the Secretary of the Society and even in this respect, the application before me is premature. The other issues raised by the applicant can be dealt with by the Committee as it goes along and can then be reviewed, if necessary, afterwards in the light if a full record. In the circumstances of this case, it is preferable to complete the hearing of the applicant’s motion and permit the Committee to reach its decision before embarking upon a judicial review.

[12] The applicant submitted that it would be unfair to her to subject her to a full hearing and the possibility of an adverse result with accompanying adverse publicity, when there existed such powerful grounds to doubt the jurisdiction of the Committee to hold the hearing at all. I have dealt with the grounds put forward, and they do not justify immediate intervention, as I have held. The possibility of an adverse result cannot be a basis for intervention.[^4]

[13] For these reasons, the application is dismissed as premature, without prejudice to the applicant raising all or any of these issues before the Divisional Court in the normal manner after the hearing has been completed. Submissions as to costs, if demanded, may be made in writing, those of the Society within 20 days; those of the applicant in response in a further 15 days.

Lane, J.

DATE: May 1, 2003

[^1]: Edwards v Law Society of Upper Canada (No. 2) (2000) 48 O.R. (3rd) 329 (C.A.) esp. paras. 43, 44. [^2]: Reasons of the Majority, April 17, 2000, page 21. [^3]: see for example: Gage v Ontario (Attorney General) (1992) 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Divisional Court); Roosma v Ford Motor Co. (1988) 1988 5633 (ON SCDC), 66 O.R. (2nd) 18 (Ont. Div. Ct.) [^4]: See Jafine v. College of Veterinarians (Ontario) (1991) 1991 7126 (ON SC), 5 O.R. (3rd) 439 (O.C.G.D.)