Landry v. Law Society of Upper Canada et al.; Le Regroupement étudiant de common law en français (RÉCLEF) et al., Intervenors

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

101 O.R. (3d) 789

Ontario Superior Court of Justice, Divisional Court, Reilly, Swinton and Morissette JJ. June 16, 2010

• Translation prepared by the Centre for Legal Translation andDocumentation (CLTD) at the University of Ottawa. Vous trouverez la version française à la p. 793, post.

Professions -- Barristers and solicitors -- Discipline -- Stay of proceedings -- Law Society unable to create francophone Appeal Panel in timely manner to hear applicant's appeal from order of Hearing Panel suspending her licence for two and a half months -- Applicant applying for permanent stay of proceedings -- Application dismissed -- Applicant unilaterally deciding to begin serving her suspension before appeal was heard -- Applicant not demonstrating that it would be contrary to interests of justice to allow appeal to be heard.

The applicant appealed an order of the Law Society Hearing Panel suspending her licence for a period of two and a half months. Her counsel accepted the respondent's offer of a hearing date of April 12, 2010. The appeal was not heard on that date as the Law Society was unable to create a francophone Appeal Panel. It offered April 26 and other dates in May and June. The suspension was to May 9. Before that date, the applicant obtained a temporary stay. She brought an application for a permanent stay of proceedings, arguing that her language rights were violated.

Held, the application should be dismissed.

Law Society members have a right under the Law Society Act, R.S.O. 1990, c. L.8 to require a hearing before an Appeal Panel made up of panelists who speak French and a right to have the appeal heard in a timely manner. The Law Society had failed to take all necessary steps to show that it had performed its positive duties in respect of language rights. However, the applicant had failed to ask that her suspension begin after her appeal was heard and instead unilaterally decided to begin serving the suspension a month after the notice of appeal was filed. She failed to demonstrate that it would be contrary to the interests of justice to allow the appeal to be heard. The temporary stay of the suspension was to continue until the appeal was heard. [page790]

APPLICATION for a stay of proceedings.

Cases referred to Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, J.E. 2000-1872, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 23 Admin. L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] CLLC Â230-040, 77 C.R.R. (2d) 189, 99 A.C.W.S. (3d) 1024; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, J.E. 2003-2076, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161, 23 W.C.B. (2d) 194 Statutes referred to Canadian Charter of Rights and Freedoms, s. 23 French Language Services Act, R.S.O. 1990, c. F.32 [as am.] Law Society Act, R.S.O. 1990, c. L.8, ss. 49.24 [as am.], (1), 49.24.1, (1), 49.37(1)

Pierre Champagne and Mark Power, for applicant. Paul LeVay and Aaron Dantowitz, for respondents. François Larocque, for intervenor RÉCLEF. Marc R. Labrosse, for intervenor AJEFO.

[1] Endorsement BY THE COURT: -- The applicant, Ms. Landry, is asking the court to order a permanent stay of the order of December 17, 2009 by the Law Society Hearing Panel suspending her licence for a period of two and a half months.

[2] At the start of the hearing, the court dismissed the applicant's application to vary the notice of application so as to ask the court to hold that the Law Society is "an institution of the Legislature" within the meaning of the French Language Services Act, R.S.O. 1990, c. F.32. In our opinion, this question is not relevant to the issue here, namely, a permanent stay.

[3] In order to obtain a stay of proceedings, the applicant must present overwhelming evidence that there was a delay or wrongful act caused by the Appeal Panel which is so unfair that it would be contrary to the interests of justice for the appeal to go forward (R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, at pp. 613-14 S.C.R.).

[4] As the Supreme Court of Canada said in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, at para. 120 (citing Power, supra, at p. 616 S.C.R.):

. . . [c]ases of this nature will be extremely rare.

[5] The applicant argued that her language rights were infringed by the Law Society Appeal Panel because her appeal was not heard on April 12, 2010. [page791]

[6] The Law Society agrees that its members have a right under the Law Society Act, R.S.O. 1990, c. L.8 to require a hearing before an Appeal Panel made up of panellists who speak French (see ss. 49.24(1) and 49.37(1)) and that the appeal shall be heard in "a timely manner".

[7] The applicant argued that her appeal could not be heard before her suspension expired because the Law Society was unable to form a panel of three French-speaking members in a timely manner, although the Law Society could form a unilingual anglophone panel in the same circumstances.

[8] The evidence was that the applicant was partly responsible for the fact that her appeal could not be scheduled within the time limit she said she wanted. Her counsel filed a notice of appeal on January 18, 2010. On February 20, the applicant began serving her suspension of her own volition. On February 24, her counsel proposed a schedule for the appeal to which the Law Society counsel consented. The date set for the filing of the respondent's memorandum was April 5.

[9] The first mention of a motion for a stay of the suspension was March 9, 2010, 18 days after the beginning of the suspension and 76 days after she learned of the Hearing Panel's decision.

[10] On March 10, 2010, the Law Society offered dates for the hearing of the appeal in April and May. The applicant's counsel replied that he was not available before May, but on March 25, he notified the Law Society he was now free for a hearing on April 12, a date already offered by the Law Society.

[11] The Appeal Panel heard the motion for a temporary stay of the suspension on March 29, 2010 and dismissed it. In its reasons, the panel said the following: [TRANSLATION] "So far as possible, this appeal should be heard as soon as possible."

[12] On April 7, 2010, the Law Society notified the applicant that the hearing of the appeal was not possible since it had no panel, but it offered April 26 and other dates in May and June, the effect of which would have been hypothetical since the suspension ended on May 9.

[13] The Law Society had a positive duty under s. 49.24(1) of the Law Society Act to create a francophone panel in a timely manner. Moreover, it had the power to appoint one or more persons as temporary members of the Hearing Panel so as to comply with the requirement that it hold a hearing in French pursuant to s. 49.24.1(1).

[14] The Law Society argued that the applicant had the burden of establishing that her language rights had been infringed. However, it is the Law Society which has in its possession all the [page792] information relating to actions taken to form a bilingual panel on an urgent basis, as here.

[15] Even if the applicant created the emergency situation, it was important that a Francophone panel be formed as soon as possible. The absence of any evidence from the Law Society to explain what happened leads us to conclude that the Law Society did not take all necessary steps to show that it had performed its positive duties in respect of the language rights protected by s. 49.24 of the Law Society Act. For example, the affidavits filed by the Law Society did not include an affidavit from the person responsible for forming the panels required in the case at bar.

[16] That said, the applicant did not meet the requirements for a permanent stay. The case at bar is not similar to that cited by Mr. Champagne. In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, the government flouted language rights in the field of education, protected by s. 23 of the Canadian Charter of Rights and Freedoms. This case concerns a statutory duty of the Law Society.

[17] The court must determine whether it would be contrary to the interests of justice to allow the appeal to be heard. The urgency was largely without the applicant's knowledge.

[18] It was she who unilaterally decided to begin serving her suspension before the appeal was heard. It was open to the applicant to ask that her suspension begin after her appeal was tried. She did not file her motion for a stay before the suspension began, although in 2008 another Appeal Panel had advised her in future to file no further motions for a stay after her suspension began.

[19] Finally, there is another possible remedy, that of continuing the temporary stay granted by Maranger J. on April 16 until the appeal is resolved. In this way, her rights to have an appeal in French will be respected and at the same time the public interest protected. The Law Society has a duty to supervise the competence and honesty of its members in their dealings with the public.

[20] The intervenors, AJEFO and RÉCLEF, asked the court to require the Law Society to prepare a formal policy and a written agreement concerning its duties to appoint temporary members, that is, steps that should be taken to initiate the procedure set out in s. 49.24.1 of the Law Society Act.

[21] Although we consider that the Law Society has not shown that it initiated this procedure, the fact remains that it is up to the Law Society to formulate its internal procedure. The case before the court does not prompt the latter to require such a procedure. [page793]

Decision

[22] The motion for judicial review is dismissed, but the temporary stay of the suspension will continue until the appeal is heard.

[23] The parties may file their written submissions on costs within 30 days.

Application dismissed.