DIV. COURT FILE NO.: 253/03
DATE: 20041102
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARY MARTHA COADY -- Applicant
- and -
THE LAW SOCIETY OF UPPER CANADA – Respondent
BEFORE: Ground J.
MOTION
HEARD: November 1, 2004
E N D O R S E M E N T
[1] This application is brought by the Applicant, Mary Martha Coady (“Coady”) during the course of a hearing by a hearing panel of the Respondent Law Society of Upper Canada (“LSUC”) on a motion brought by Coady to reopen discipline proceedings commenced against her in 2001 which resulted in an Agreed Statement of Facts being submitted to the Discipline Committee and a subsequent finding of professional misconduct and permission granted to Coady to resign from LSUC. The hearing of Coady’s motion is continuing and has been interrupted on several occasions mainly as a result of procedural matters raised and motions brought by Coady. The hearing is scheduled to continue on November 4, 2004.
[2] The current motion brought by Coady seeks extensive relief. Coady advised the Court, at the opening of the hearing of this motion, that the relief she was seeking that day was limited to a stay of the proceedings of the hearing panel of LSUC until the disposition of a motion which is to be brought by Coady before a panel of the Divisional Court raising a number of procedural, jurisdictional, Charter and other issues related to the hearing before the hearing panel of LSUC and the adjournment of that part of the motion before me which deals with certain brokerage account records relating to the account of her ex-husband, Mr. Boyle (“Boyle”) at RBC Dominion Securities pending the disposition of a motion currently before the Court of Appeal with respect to the sealing of such account records in the course of matrimonial proceedings between Coady and Boyle.
[3] The motion which Coady seeks to bring before a panel of the Divisional Court, which I believe should be an application for judicial review, (the “Panel Proceeding”) involves a number of issues relating to the current hearing before the hearing panel of LSCU including the disclosure of the brokerage account records of Boyle referred to above, the disclosure of others documents alleged to have been provided to LSUC by the RCMP, the lack of an authorization from the Proceedings Authorization Committee of LSUC with respect to the discipline proceeding against Coady, certain declaratory relief related to infringement of Coady’s Charter rights and a reasonable apprehension of bias on the part of the hearing panel of LSUC.
[4] My understanding is that, to date, the hearing panel of LSUC has dealt with the jurisdictional issue raised by Coady and, on a motion before Lane J., it was determined that all of the evidence as to the jurisdictional issue not being in, the motion was premature and the hearing should continue. It is also my understanding that the hearing panel wishes to continue to deal with the remaining grounds for Coady’s motion to reopen the discipline proceedings against her, those grounds being duress exerted upon her to sign the Agreed Statement of Facts, the inadequate representation by counsel representing her at the discipline proceedings, a conflict of interest on the part of counsel representing her at the discipline hearing and whether certain witnesses sought to be called by Coady should be required to appear before the hearing panel.
[5] In my view, the motion now brought by Coady before this Court is fundamentally flawed. It is the established practice of the Divisional Court that it will not, except in extremely rare cases, interfere in or fragment proceedings before Administrative Tribunals. The position of the Court was articulated by Callaghan C.J. in Ontario College of Art v. Ontario (Human Rights Commission) (1993) 1993 3430 (ON SCDC), 11 O.R. (3rd) 798 (Div. Ct.) where he stated:
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.
[6] On a prior motion by Coady in this matter, Coady v. The Law Society of Upper Canada, (May 1, 2003) (Div. Ct.) unreported, Lane J. stated at paragraphs 9 and 11:
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.
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., 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.
[7] Having considered the submissions of counsel and the evidence before this Court, I find nothing to satisfy me that there are very extraordinary circumstances involved in this matter which would justify a departure from the practice of this Court not to interfere in or fragment proceedings before administrative tribunals. In particular, the procedural issues referred to by Coady as affecting the jurisdiction of the discipline committee have been dealt with by Lane J. and it has been determined by him that the hearing before the hearing panel of LSUC should continue.
[8] In addition, it appears to me that the motion now brought by Coady is flawed in that the Law Society Act provides for an appeal from a hearing panel to the appeal panel of LSUC and Coady should exhaust her remedies before LSUC before applying for partial or full judicial review by the Divisional Court.
[9] It also my view that the policy underlying the practice of the Divisional Court not to intervene in or fragment proceedings before an administrative tribunals is particularly appropriate in the case at bar. Based on the past history of this matter, it would appear to be a virtual certainty that, if the decision of the hearing panel goes against Coady, she would at that time apply for judicial review of the proceedings before the hearing panel raising all of the issues that she now seeks to raise on this motion and in the Panel Proceeding sought to be brought by her. The result would be a duplication and multiplicity of proceedings and, in my view, it would be totally unproductive to deal with any of the issues raised by Coady on this motion at this time or to stay the proceedings of the hearing panel even if I were satisfied that there were good reasons to depart from the usual practice not to intervene in those proceedings at this time. My conclusion applies equally to the issue now raised by Coady of a reasonable apprehension of bias on the part of the hearing panel. Even if a determination were made at this time as to whether the transcript of the proceedings substantiates Coady’s claim of a reasonable apprehension of bias, it is a virtual certainty that at the conclusion of the hearings the same issue would be raised by Coady on an application for judicial review at that time.
[10] The motion before this court, in so far as it relates to a stay of the proceedings before the hearing panel of LSUC and the brokerage account records of Coady’s ex-husband is dismissed. Coady has concurred in the submissions of counsel for Ms Speiss that that part of her motion dealing with “defaulting witnesses” will only proceed with respect to Ms Speiss in accordance with the procedures previously agreed to by Coady that Ms Speiss will be given ample authority to prepare responding material and to obtain instructions from her client and in the submissions of counsel for Boyle that no further motion will be brought by Coady dealing with the disclosure of Boyle’s brokerage account records until the Ontario Court of Appeal has dealt with the matter of the sealing of such documents on the motion currently before it. It is also noted on the record that the appearance by Mr. Merksey as counsel to RBC Dominion Securities Ltd. on this motion is not an admission on the part of the law firm of Blake Cassels & Graydon of any conflict in respect to this matter.
[11] As Coady did not advise any of the other parties until the hearing of this motion that she would not be proceeding with respect to that part of her motion dealing with “defaulting witnesses” or with the brokerage account records of Boyle, costs thrown away in the amount of $500 are awarded to each of Ms Speiss and Mr. Boyle in the amount of $500 payable within 30 days of the date of this Endorsement. Coady and counsel for LSUC are invited to make brief written submissions to me as to the costs of this motion on or before November 30, 2004.
_____________________
Ground J.
Released: November 2, 2004