Baker v. The Law Society of Upper Canada

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

69 O.R. (3d) 449

[2004] O.J. No. 131

Divisional Court File No. 121/0

Ontario Superior Court of Justice

Divisional Court

Benotto S.J., MacFarland and Ground JJ.

January 16, 2004

Professions -- Barristers and solicitors -- Discipline -- Transitional provisions of Law Society Act in 1999 providing that hearing which had commenced under old Act would remain governed by old Act -- "Hearing" referring to substantive hearing on merits where evidence is called -- Panel of Discipline Committee hearing disclosure motions when old Act was in effect but carefully avoiding becoming seized with hearing of main matter -- Panel then becoming seized of two of eight counts of alleged misconduct for purpose of dismissing those counts -- Hearing not having commenced with respect to remaining counts before coming into effect of new Act -- New Act applying to those counts - Law Society Act, R.S.O. 1990, c. L.8 - Law Society Amendment Act, 1998, S.O. 1998, c. 21. [page450]

The Law Society swore a complaint against the appellant solicitor in 1995 which contained eight counts of alleged misconduct. The Law Society Act then in effect provided that if discipline proceedings were unwarranted, Convocation may order costs to the member. A panel of the Discipline Committee began pre-hearing motions for disclosure in 1996, but was careful to ensure that it was not seized with the hearing of the main matter. In 1997, the panel became seized of two counts for the sole purpose of dismissing them. In 2000, a second panel of the Discipline Committee stayed the remaining counts. By then, a new Law Society Act was in effect. Authority for costs had been given to the hearing panel. The transitional provisions of the new Act provided that if a hearing had commenced under the old Act, the proceeding would remain governed by that Act, and that if no hearing had been commenced, the new Act would apply to the proceeding. After staying the remaining counts, the panel determined that the old Act applied to the proceeding and that it did not have jurisdiction to deal with costs. The Appeal Panel confirmed that decision. The appellant appealed.

Held, the appeal should be allowed.

The term "hearing" in the transitional provisions refers to the substantive hearing on the merits where evidence is called. This interpretation is consistent with the way both panels considered that the "hearing had not commenced" and the undertaking of the Law Society that the first panel would only be seized of two counts. Because the panel was seized of those two counts, there was an automatic severance of the remaining counts. No hearing had commenced with respect to those counts. Thus, the new Act applied to the remaining counts. The matter was remitted to the Law Society for a determination of the costs issue under the new Act.

APPEAL from a decision of the Law Society Appeal Panel.

Cases referred to Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 1222, [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, 226 N.R. 201 Statutes referred to Law Society Act, R.S.O. 1990, c. L.8, s. 33 Law Society Amendment Act, 1998, S.O. 1998, c. 21, s. 35

Chris Paliare, for appellant. William Horton and Jeffrey Galway, for respondent.

[1] THE COURT: -- The applicant appeals the decision of the Law Society Appeal Panel which interpreted s. 35 of the Law Society Amendment Act, 1998, S.O. 1998, c. 21. At issue is the meaning of the words: "a hearing had commenced". The applicant's entitlement to costs of a proceeding changes depending upon the interpretation.

Facts

[2] The Law Society of Upper Canada ("Law Society") swore a complaint against Thomas Baker in February 1995. It contained [page451] eight counts of alleged misconduct. The Law Society Act, R.S.O. 1990, c. L.8, then in force provided only that, if proceedings were unwarranted, Convocation may order costs to the member.

[3] In January 1996, a panel of the Discipline Committee (the "Eberts panel") began pre-hearing motions for disclosure. There were at least 23 attendances before this panel. The panel was careful to insure that it was not seized with the hearing of the main matter.

[4] On May 16, 1997, the Eberts panel dismissed counts 8 and 9. This was done after counsel for the Law Society indicated on the record that he would be "offering no evidence and inviting the panel to dismiss complaints 8 and 9". The Chair stated that the panel had "studiously avoided becoming seized of the main complaints". The Law Society undertook that the panel would be seized of counts 8 and 9 only. The panel then dismissed those complaints. Counsel for Mr. Baker said he would be dealing with costs at a later date.

[5] Nearly two years later, a second panel of the Discipline Committee (the "Yachetti panel") was convened to hear a motion to have the proceeding stayed. This panel too confirmed it would not be seized of the "actual hearing". On March 20, 2000, the Yachetti panel stayed the remaining counts 2-7 [See Note 1 at end of document]. In its reasons, it referred to delay and the fact that five years after the complaint "no hearing has commenced".

[6] By then, a new Law Society Act had come into effect. In February 1999, amendments to the old Act gave authority for costs to the hearing panel.

[7] The Yachetti panel heard submissions on costs. It reviewed the transitional provision in the new Act and held that a hearing had commenced before the Eberts panel thus, the old Act applied to the proceeding. It determined that it did not therefore have jurisdiction to deal with costs.

[8] Mr. Baker appealed to the Appeal Panel which confirmed the Yachetti panel's decision [See Note 2 at end of document]. Mr. Baker appeals that decision and asks that the matter be remitted to the Law Society for a determination of costs based on the new Act.

Analysis

[9] The transition provision in the Law Society Act, 1999 (The "new Act") is contained in s. 35. It states: [page452]

35(1) If, before the day this Act [Law Society Amendment Act, 1998] comes into force, a hearing was commenced in a proceeding under section 27, 31, 33, 35, 46, or 47 of the Act [the Law Society Act], as those sections read before that day, the proceeding, including any appeal in the proceeding, shall be continued and completed in accordance with the Act, and the regulations and rules under the Act, as they read before this Act came into force.

(2) If, before the day this Act comes into force, no hearing was commenced in a proceeding referred to in subsection (1), the proceeding shall, with necessary modifications, be continued under the provisions of the Act [the Law Society Act] as amended by this Act [Law Society Amendment Act, 1998].

(Emphasis added)

[10] The statute states that, if a hearing had commenced under the old Act, the proceeding would remain governed by the old Act. Conversely, if no hearing had been commenced, the new Act would apply to the proceeding.

[11] The standard of review is correctness. The question is interpretation of a transitional provision in a statute. The question under review does not involve specialized knowledge of the topic or experience and skill in dealing with the particular issue. There is no issue of credibility or a finding of fact based on viva voce evidence. There is no privative cause and there is a broad right of appeal. (See: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193.)

[12] The Law Society argues that, if any hearing had commenced, the old Act would apply. This is to insure that only one Act covers the entire proceeding. Thus, the commencement of a hearing on a purely procedural matter would mean that the balance of the proceeding, including the hearing on the merits, would be conducted under the old legislation.

[13] We disagree. The "hearing" in s. 35 refers to the substantive hearing on the merits where evidence is called. Section 35(1) refers to s. 33 of the old Act. The hearing referred to in s. 33 is the hearing on the merits. To infer otherwise would mean that a simple attendance (for example, to clarify the terms of the complaint) would deny the member the benefit of the new legislation on the substantive hearing which may be years later.

[14] This interpretation is consistent with the way both panels considered that the "hearing had not commenced" and the undertaking of the Law Society that the Eberts panel would only be seized of counts 8 and 9. Because the panel was seized of counts 8 and 9, there was an automatic severance in fact of counts 2-7. No hearing had commenced regarding counts 2-7. Thus, the new Act applies to those counts. [page453]

[15] The transitional provision clearly provided for the possibility of one proceeding being governed by two Acts. Otherwise the word "proceeding" would have been used instead of the word "hearing".

[16] The order of the Law Society's Appeal Panel is set aside. The matter is remitted back to the Law Society for a determination of the costs issue under the new Act.

[17] If the parties cannot agree on costs of this appeal, they may exchange and send brief written submissions within 30 days.

Appeal allowed.

Notes

Note 1: There was no count 1.

Note 2: Janet Minor, a member of the Appeal Panel, dissented.