COURT FILE NO.: 70/07
DATE: 20070216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF the Law Society Act; AND IN THE MATTER OF Mary Martha Coady of the Town of Arnprior, a Member of the Law Society
B E T W E E N:
MARY MARTHA COADY
Appellant
- and -
THE LAW SOCIETY OF UPPER CANADA
Respondent
self-represented
J. Thomas Curry and Jaan Lilles, for the respondent
HEARD: February 16, 2007
REASONS FOR DECISION
CUMMING J.:
The Motion
[1] The Appellant, Mary Martha Coady (“Coady”), has a pending appeal to the Divisional Court in respect of a decision of an Appeal Panel related to proceedings under the Law Society Act, R.S.O. 1990, c. L. 8. The Respondent brings a motion to quash her appeal.
Background
[2] In January, 2002 a Hearing Panel of the Law Society made findings against the Appellant, Ms. Coady, after she signed an Agreed Statement of Facts admitting allegations contained in Notices of Application relating to a disciplinary proceeding brought by the Law Society. Ms. Coady was given permission to resign from the Law Society and did so January 8, 2002.
[3] In July, 2002 Ms. Coady moved for a declaration that the Law Society did not have jurisdiction to proceed against her and to set aside the Agreed Statement of Facts. The Hearing Panel released its Decision dismissing that part of Ms. Coady’s motion challenging jurisdiction June 16, 2004.
[4] On January 21, 2005 the Hearing Panel released its decision setting aside the Agreed Statement of Facts. On July 6, 2006 the Law Society brought a motion before the Hearing Panel to have the Hearing Panel recuse itself on account of reasonable apprehension of bias. Ms. Coady supported that motion. Ms. Coady brought a cross-motion seeking, inter alia, a stay of the proceedings.
[5] The Hearing Panel granted the Law Society’s motion and made an Order July 6, 2006 that “the panel is defunct and a new Panel is to be constituted.” Consequentially, Ms. Coady’s cross-motion was not dealt with.
[6] A new hearing was scheduled for February 12, 2007 by the Hearing Management Tribunal September 25, 2006.
[7] Ms. Coady gave a “Notice of Appeal to an Appeal Panel” dated August 2, 2006.
[8] A motion by Ms. Coady to the Appeal Panel to stay the order of the Hearing Management Tribunal, and for directions with respect to fresh evidence, was dismissed October 11, 2006.
[9] The Law Society moved to quash Ms. Coady’s appeal of the Hearing Panel’s July 6, 2006 Order. An Order of the Appeal Panel dated January 12, 2007 states “The Motion to quash [Ms. Coady’s] Appeal is allowed.”
[10] As stated above, the hearing before the new Hearing Tribunal was set for February 12, 2007. However, Ms. Coady gave Notice of Appeal to the Divisional Court of the January 12, 2007 Order of the Appeal Panel. The Hearing Management Tribunal ordered the intended February 12, 2007 hearing (to consist of French speaking panelists as requested by Ms. Coady) to be rescheduled at a further Hearing Management Tribunal February 19, 2007.
Motion to Quash by the Law Society
[11] The Law Society moves to quash Ms. Coady’s appeal to the Divisional Court.
[12] In my view, and I so find, the appeal at hand of Ms. Coady to the Divisional court is properly to be quashed. My reasons follow.
[13] The statutory right of appeal under Rule 49.38 of the Law Society Act does not apply to the Decision and Order being appealed from. Only a final decision or order of the Appeal Panel can be appealed to the Divisional Court.
[14] The Decision appealed from is simply interlocutory in nature and effect. The July 6, 2006 Order of the Hearing Panel states that a differently constituted Panel shall preside over the continuation of the matter. The decision of the Hearing Panel July 6, 2006 to recuse itself and the decision of the Appeal Panel January 12, 2007 to quash the motion to appeal that decision are not final decisions or orders as contemplated by the legislation. The hearing on the merits has yet to commence. No rights of Ms. Coady have in any way been finally determined. There is no jurisdiction for the relief being sought by Ms. Coady from me, as a Divisional Court judge.
[15] Ms. Coady makes forceful submissions that the original Hearing Panel lacked jurisdiction. Amongst other arguments, she says that the process for disciplinary proceedings under the Law Society Act were not complied with and there has not been proper disclosure.
[16] As stated above, the Hearing Panel dismissed Ms. Coady’s claim that the Hearing Tribunal lacked jurisdiction June 16, 2004. Ms. Coady has twice before come to the Divisional Court to attack the jurisdictional underpinnings of the Hearing Tribunal by way of seeking a stay of proceedings and applications for judicial review. See Coady v. Law Society, [2003] 23465 (Div. Ct.); Coady v. Law Society, [2004] O.J. No. 4576 (Div. Ct.). In each instance, Ms. Coady’s initiative was seen as inappropriate and premature, given the proceedings brought by the Law Society were not completed.
[17] As I have stated above, Ms. Coady supported the position of the Law Society July 6, 2006 that the Hearing Tribunal should recuse itself. Ms. Coady submits that the result was to clean the past slate ie. render null and void everything done by the Hearing Tribunal to that point in time, including its decision of June 16, 2004 dismissing her motion that the Hearing Tribunal lacked jurisdiction.
[18] My reading of the transcript of the recusal decision July 6, 2006 is that the new Hearing Committee to be constituted would proceed from that point forward. It is apparent from the transcript the Law Society was not agreeing that the previous decisions and Orders of the Hearing Tribunal were a nullity and would fall away.
[19] Ms. Coady’s cross-motion for a stay of proceedings to be heard at the July 6, 2006 hearing of the Hearing Tribunal was not adjudicated upon. No relief was allowed or denied. Her motion and position were simply not dealt with because the Hearing Panel then constituted had determined to recuse itself with a new Hearing Panel to be constituted and to proceed forward. There was no final disposition of any issue at either the Hearing Tribunal hearing of July 6, 2006 or the Appeal Panel hearing of January 12, 2007.
[20] Ms Coady has, of course, the right to appeal the final decision and order dealing with her disciplinary proceeding, should that be necessary, in the fullness of time upon the completion of the proceedings and the adjudication of all issues on the merits. In such event, she can, of course challenge the jurisdiction of the new Hearing Panel.
Disposition
[21] For the reasons given, the motion to quash the appeal is allowed.
[22] Submissions as to costs have been made. Costs are awarded in favour of the respondent in the amount of $2,000.00, inclusive of GST and disbursements, payable by Ms. Coady forthwith.
CUMMING J.
Released: February 16, 2007
COURT FILE NO.: 70/07
DATE: 20070216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
IN THE MATTER OF the Law Society Act; AND IN THE MATTER OF Mary Martha Coady of the Town of Arnprior, a Member of the Law Society
B E T W E E N:
MARY MARTH COADY
Appellant
- and -
THE LAW SOCIETY OF UPPER CANADA
Respondent
REASONS FOR JUDGMENT
CUMMING J.
Released: February 16, 2007