CITATION: Senjule v. LSUC, 2013 ONSC 2817

DIVISIONAL COURT FILE NO.: 74/12

DATE: 20130524

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Senjule v. Law Society of Upper Canada

BEFORE: Swinton, Pomerance and Lederer, JJ.

COUNSEL: Graeme Hamilton, for the appellant, Dunstan Dan Senjule

William Holder, for the respondent, Law Society of Upper Canada

HEARD AT TORONTO: April 24, 2013

E N D O R S E M E N T

Pomerance J.

INTRODUCTION

[1] A disciplinary panel of the Law Society of Upper Canada (“Law Society”) found that the appellant knowingly participated in a mortgage fraud. It revoked his licence to practise law. An appeal panel of the Law Society affirmed this finding in a decision dated January 9, 2012. The appellant now appeals to this court, alleging that the hearing panel erred in its treatment of two adjournment requests made by him on medical grounds. The appellant says that these errors resulted in a denial of procedural fairness and natural justice.

[2] The appellant challenges two rulings:

1. the ruling of June 8, 2009, denying an adjournment and directing that the hearing take place in the appellant’s absence; and

2. the ruling of October 7 2009, allowing an adjournment on the condition that the appellant refrain from practising law until the disposition of the matter.

BACKGROUND

The June Request

[3] The appellant’s health first became an issue in April 2009. On April 1, 2009, his counsel sought an adjournment because the appellant had gone to the hospital for what might have been a heart attack or angina. The adjournment was granted on consent. The next day, April 2, 2009, counsel reported that the appellant had been released from the hospital but was at risk of a “sudden stroke”. Again, counsel for the Law Society consented to an adjournment and the matter was put over to June 8, 2009, for one week of hearing days.

[4] On June 8, 2009, appellant’s counsel reported to the hearing panel that the appellant was “on standby at home”. Counsel filed a letter from the appellant’s family physician, Dr. Otto, stating that the appellant had been referred to a cardiologist and that, because of his ischemic heart disease, he could suffer serious injury or death when exposed to stress.

[5] It was learned some months later that this letter was inaccurate. While Dr. Otto suggested that the appellant would be seeing a cardiologist in the future, the appellant had already seen the heart specialist, Dr. Elzawi, on June 1, 2009. Dr. Elzawi’s report, which was sent to Dr. Otto on June 5, 2009, reported the appellant’s chest pain to be “musculoskeletal”. The appellant’s pulse was regular and his blood pressure was 140/100. Dr. Elzawi diagnosed the appellant with hypertension and prescribed him blood pressure medication. Dr. Elzawi recommended some lifestyle changes; however, he did not recommend avoidance of stressful environments. He did not mention the concerns identified in Dr. Otto’s June 4, 2009 letter, such as ischemic heart disease. Dr. Elzawi’s report provided little support for the concerns expressed by Dr. Otto in his June 2009 letter.

[6] While these contradictions did not come to light until October 2009, the hearing panel was nonetheless concerned about the quality of the medical evidence presented in June, 2009. In his letter, Dr. Otto left out many important facts. He did not report the results of earlier medical tests. He did not identify when he had last seen the appellant or when he referred the appellant to the cardiologist.

[7] These gaps became all the more significant when the panel learned that the appellant was still practising law. The appellant had undertaken to refrain from practising real estate law, but was representing clients in criminal and family matters. On its face, this was inconsistent with the recommendation that he avoid stressful situations.

[8] Finally, the request was far from timely. The appellant’s health had been in issue since April, 2009. Between April and June, counsel had ample time to prepare a formal motion for an adjournment. He neither filed a motion nor presented an affidavit. Rather, he simply produced a letter from Dr. Otto on the day that the hearing was scheduled to resume.

[9] On the basis of these concerns, the hearing panel denied the adjournment sought on June 8, 2009, and directed that the hearing resume on June 9, 2009, in the appellant’s absence.

[10] On June 12, 2009, the hearing was not completed. The panel set continuation dates in September and October 2009. The September dates were adjourned for various reasons unrelated to this appeal and the hearing resumed on October 1, 2009.

The October Request

[11] The Law Society closed its case mid-way through the day on October 6, 2009. The panel adjourned the matter to October 7, 2009 so that the appellant could bring his motion for an adjournment. Before adjourning for the day, the hearing panel told counsel for the appellant that it wished to hear “medical evidence from a medical doctor who can give an opinion on whether or not Mr. Senjule can participate in his defence.”

[12] The appellant did not file a formal motion to adjourn on October 7, 2009; nor did he tender any affidavit or viva voce evidence. Counsel simply filed a new letter from Dr. Otto, dated October 2, 2009, and asked that the matter be adjourned for two to three months.

[13] The letters from Dr. Otto stated that the appellant had “uncontrolled hypertension” and that he was at a “very high risk for a heart attack or stroke”. Dr. Otto estimated that it would take approximately three months to bring the appellant’s condition under control, so that he could testify at the discipline hearing. Dr. Otto did not indicate when he had last seen the appellant, or what the outcome of various medical tests were.

[14] The picture painted by the appellant’s cardiologist, Dr. Elzawi, was very different. By now, the hearing panel had received the letter written by Dr. Elzawi three and a half months earlier. He characterized the appellant’s chest pain as musculoskeletal. Dr. Elzawi did not mention a risk of heart attack or stroke. The letters from the two doctors contradicted one another and there was no evidence to explain or resolve the contradictions. Nor was there any evidence to explain how it was that the appellant could continue to practise law if he was medically required to avoid stressful situations.

[15] On October 7, 2009, counsel for the appellant told the panel that Dr. Otto was not available to testify, given his commitments to his patients. Counsel had not been successful in reaching Dr. Elzawi.

[16] The hearing panel was again concerned about the “quality or the adequacy of the medical evidence” and the timing of the request, which was presented at the “last minute”. The authors of the letters had not been produced for cross-examination and the diagnostic charts remained unexplained. The appellant was continuing to practise law notwithstanding the indication that he was to avoid stressful situations. The panel balanced the competing interests at stake, including the public interest in a timely hearing and the protection of the public. It ruled that it would grant the adjournment but only on the condition that the appellant refrain from practising law in the interim.

[17] The appellant elected not to abide by this condition. Therefore the hearing was not adjourned and the appellant did not testify. Counsel advised that the appellant would call no evidence. However, an adjournment was granted on the request of appellant’s counsel, in order that transcripts be ordered in preparation of closing submissions.

[18] Closing submissions were made on November 16, 2009. The hearing panel released its finding of misconduct on February 25, 2010, and issued the penalty on August 23, 2010.

[19] The appellant appealed on the basis of the denied adjournment requests on June 8, 2009, and the fact that the October 7, 2009, adjournment request was granted subject to a condition. The appeal panel denied the appeal.

THE STANDARD OF REVIEW

[20] The crux of the appellant’s position is that there was a denial of natural justice or procedural fairness at his disciplinary hearing. Where this type of allegation is advanced, the standard of review does not apply in the usual sense. The court must determine whether a party has been denied procedural fairness or natural justice. If so, the hearing was unfair and any resulting decision must be set aside.

[21] At the same time, this court acknowledges the discretionary nature of decisions involving adjournment requests. The decision to permit or deny an adjournment falls squarely within the discretion of the hearing panel. In Olech v. Royal College of Dental Surgeons of Ontario, [1994] O.J. No. 520 (Ont. Div. Ct.), this Court observed in para. 3 that: “it is only in the rarest of cases that the court would intervene because of such a decision and only if it reaches the conclusion that the tribunal proceeded on a wrong principle”. Tribunals have an inherent power to control their own processes, which includes the power to grant or refuse adjournments, and to impose reasonable conditions on such adjournments (Re Amourgis and Law Society of Upper Canada (1984), 1984 1872 (ON SC), 12 D.L.R. (4th) 759 (Ont. Div. Ct.) at 761).

[22] In this case, the determination of whether there was a denial of natural justice or procedural fairness requires us to consider the exercise of a discretionary power. Given the deference that is usually accorded discretionary determinations, the standard of review in this case is akin to one of reasonableness. The inquiry must focus on whether the panel took account of relevant considerations in balancing the competing interests, and whether it made a decision consistent with the interests of justice. Natural justice and procedural fairness were infringed only if it can be said that the panel exercised its discretion in an unreasonable or non-judicious fashion.

ANALYSIS

[23] The appeal panel of the Law Society found that there was no denial of procedural fairness or natural justice in this case. We agree with this determination. The hearing panel balanced the appropriate factors in determining whether the adjournments should be granted and if so, on what conditions. We are satisfied that the decisions reflected a judicious exercise of discretion.

[24] In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484 the Court of Appeal for Ontario set out a non-exhaustive list of factors that govern rulings on adjournment requests at para. 37:

A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered. [emphasis added]

[25] In this case, the hearing panel viewed the appellant’s medical issues with some skepticism. There was reason to believe that the whole picture was not being placed before the panel. Information that should have been available was not presented. Contradictory information was not resolved. The requirement that the appellant avoid stress was, on its face, belied by the fact that he was continuing to practise law. The material filed by the appellant, both in June and October 2009, left many important questions unanswered.

[26] The appellant bore the onus to establish a proper evidentiary foundation for his adjournment requests. He failed to do so. His health had been in issue for some months. The hearing panel made it clear on various occasions that it wished to hear from a medical witness. This was reiterated the day before the adjournment request of October 7, 2009. Notwithstanding these firm indications by the panel, the appellant failed to produce a medical witness, either in person, or by means of an affidavit.

[27] The appellant did ask for an opportunity to call Dr. Otto in connection with the October adjournment. On October, 7, 2009, counsel for the appellant requested a two day delay so that he could secure Dr. Otto’s attendance for cross-examination. However, he did not make this request until the end of the hearing, when it was apparent that the panel was going to impose a condition on the requested adjournment. At this point, it was too late to supplement the evidence. The appellant had been content to base his request on Dr. Otto’s letters and the matter had proceeded on this basis. The panel had heard full argument on the adjournment request. In effect, the appellant was asking for a “second kick at the can” in the face of an adverse ruling. The hearing panel was entitled to deny this request in the interests of ensuring the orderly administration of its own processes.

[28] In argument before us, counsel for the appellant relied on the decision of this Court in Olech, cited above. That case is readily distinguishable. Counsel for Mr. Olech reported to the professional discipline committee that his client had been hospitalized in the United States for peptic ulcer disease and had been advised not to travel. Counsel had learned of these events just days before, in advance of a holiday weekend. Counsel asked for the opportunity to obtain further information and the request was not granted. In those circumstances, it was held by the majority that the denial of an adjournment breached the principles of natural justice and procedural fairness.

[29] In Olech, the adjournment was refused on the first occasion, before counsel had a meaningful opportunity to gather information. This case is very different. The protracted history, which included other health related adjournment requests, provided the appellant with ample opportunity to marshall a proper evidentiary record. Unlike Olech, in this case, the first few requests for health related adjournments were granted, so that counsel could obtain further information about the appellant’s medical status.

[30] Finally, in contesting the October 7, 2009 ruling, the appellant takes issue with the condition imposed by the hearing panel on the October adjournment. It is said that it was both arbitrary and punitive to require that the appellant refrain from the practice of law as a condition of the adjournment.

[31] We do not agree. It was open to the hearing panel to conclude, upon balancing the relevant factors, that the protection of the public was engaged. The hearing had been outstanding for several months and had been adjourned many times. The medical evidence provided a less than satisfactory basis for believing that attendance at the hearing would impair the appellant’s health. It was not clear when the appellant’s health would improve. The evidence presented by the Law Society had established a “prima facie case of mortgage fraud involving Mr. Senjule involving millions of dollars”.

[32] In these circumstances, it was open to the hearing panel to conclude that, if an adjournment was granted, the appellant had to refrain from practising law in the interim. This solution reflected a fair and careful balancing of competing interests. The hearing panel was prepared to give the appellant some benefit of the doubt on the medical issue. It was not, however, prepared to allow a lawyer, shown to have committed fraud on a prima facie basis, to continue to represent members of the public. This was necessary both to protect potential clients and to maintain public confidence in the tribunal and its processes. We see no error in the condition imposed by the Law Society.

[33] We find it curious that this condition was not imposed when the hearing was adjourned for a different reason on October 9, 2009. Counsel for the appellant asked for an adjournment of the hearing so that he could obtain transcripts for the preparation of submissions. The hearing was adjourned, but the panel declined to place any restrictions on the appellant’s practice of law. This strikes us as odd. The need to protect the public was presumably still engaged, whatever the reason for the adjournment and even if the adjournment was for only a few weeks. In any event, none of this detracts from the soundness of the earlier decision which required that the appellant refrain from practising law pending the disposition of the matter.

[34] For all of these reasons, we agree with the appeal panel that there was no denial of procedural fairness or natural justice in this case. The hearing panel properly exercised its discretion to control its own processes. It balanced competing interests and arrived at justifiable conclusions. There is no basis on which this Court can or should intervene.

[35] The appeal is therefore dismissed. Costs to the respondent are fixed at $5,000, an amount agreed upon by the parties.

Pomerance J.

Swinton J.

Lederer J.

DATE: May 24, 2013