Court File and Parties

COURT FILE NO.: 369/08 DATE: 2009/02/03

SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: Mary Martha Coady / APPELLANT v. the Law Society of Upper Canada / RESPONDENT

BEFORE: Justice Bellamy

COUNSEL: Mary Martha Coady, appellant, in person J. Thomas Curry, for the respondent

HEARD AT TORONTO: February 2, 2009

Endorsement

Bellamy, J.

[1] The appellant brings a motion for an immediate stay of the continuation of proceedings against her commenced by the Law Society of Upper Canada (“LSUC”) on November 27, 2007. This motion is dated September 16, 2008. She also seeks an order for directions with respect to the materials to be filed on this appeal, an order extending time for perfection of this appeal, and an order directing that this appeal be heard together with an application for judicial review commenced in June 2008.

[2] On Friday, January 30, 2009, after the date for filing a factum had passed, the appellant faxed to the court her factum in support of her motion. Her factum characterized the issue as being a motion brought for an injunction, pending a hearing of this appeal, to prohibit the current LSUC Hearing Panel from taking any further steps because of their conduct and comments. She alleges prosecutorial misconduct, a reasonable apprehension of bias on the part of the Hearing Panel, and a very real likelihood of a miscarriage of justice. In addition to the allegations of improprieties and bias on the part of the Hearing Panel, she alleges numerous conflicts of interest involving a variety of different individuals, law firms, members of the Hearing Panel, and between the LSUC and LawPro. She further submits that the LSUC had no jurisdiction to commence proceedings against her and, even if it did, it subsequently lost that jurisdiction due to the passage of time and due to the abusive manner in which the proceedings were conducted.

[3] As noted above, Ms. Coady has also brought an application for judicial review of the LSUC proceedings. In July 2008, Archibald J. heard a motion for a stay pending the hearing of the judicial review, the substance of which was very similar to the motion before me (Coady v. Law Society of Upper Canada, [2008] O.J. No. 2862). At that time, Archibald J. denied the motion for a stay on the basis that it was premature. The appellant alleges that the law relating to stay applications has changed significantly since Archibald J. released his decision on July 18, 2008: Ontario Provincial Police v. MacDonald.

[4] The appellant also contends that the law relating to prosecutorial misconduct has changed since Justice Archibald’s decision of July 2008: R. v. McNeil, 2009 SCC 3. In her factum, but not in her affidavit, Ms. Coady reiterates allegations of deliberate prosecutorial misconduct and suppression of evidence of a type that, she says, has led to unspecified prosecutors being convicted of abuse of office and disbarment in North Carolina and is similar to the type of misconduct that has also resulted in charges against unspecified prosecutors in other jurisdictions in Canada. Other than allegations in her factum, Ms. Coady provided no evidence to substantiate her allegations of reasonable apprehension of bias.

[5] It is the appellant’s view that, given the two new cases, and given that an Order has not yet issued with respect to Archibald J.’s decision in which he refused to grant a stay pending the disposition of her application for judicial review, this matter should be remitted to Justice Archibald to allow him to reconsider his decision. Lastly, she asks that the motion to stay pending the decision in the appeal also be remitted to him, failing which, she asks that I grant the stay requested.

[6] The motion is dismissed in its entirety. There is no basis to request Archibald J. to reconsider his decision, even if it were appropriate to remit the matter to him. Neither case changed the law in any way that is germane to the issues raised by the appellant. In MacDonald, the court merely articulated and applied the well-established tests for a stay and for reasonable apprehension of bias. It found that a stay should be granted based on the facts of that case. In McNeil, the court reviewed the process for production of third party records based on R. v. O’Connor, [1995] 4 S.C.R. 411, and determined how that process should apply to third party police records in the context of criminal proceedings.

[7] The LSUC proceedings are now at a close. Only the final decision is pending, from which Ms. Coady has a right of appeal. Nothing of substance has changed since Archibald J. refused to grant a stay. Before me, as before Archibald J., Ms. Coady has “failed to establish either that the balance of convenience is in her favour or that she will suffer irreparable harm should the hearing be allowed to progress to its conclusion. The test for granting a stay is thus not met, and consequently, the motion to stay the proceedings before the Hearing Panel is dismissed” (Coady, supra, at para. 19)

[8] As to directions for materials to be filed and an extension of time in this appeal, the parties have agreed to discuss these issues. No order is required of this court.

[9] In conclusion, the motion to remit the matter to Justice Archibald is dismissed, as is the motion requesting a stay.

[10] The successful respondent is entitled to its costs, which the parties agree should be $3,500. In the matter before Justice Archibald, the costs were fixed at $3,500 payable to the successful party in the cause. Given that this motion is essentially a repetition of the motion before Justice Archibald, the successful respondent asks that the costs be fixed and payable to the LSUC. I agree.

[11] Costs are fixed at $3,500 inclusive of disbursements and GST, payable to the Law Society of Upper Canada forthwith.

Bellamy J.

DATE: