Court File and Parties

CITATION: Law Society of Upper Canada v. Kivisto, 2016 ONSC 1400

DIVISIONAL COURT FILE NO.: 024/16

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: The Law Society of Upper Canada, Applicant/Respondent

AND:

Jussi Kustaa Kivisto, Respondent/Applicant

BEFORE: L.A. Pattillo J.

COUNSEL: Amanda Worley, for the Law Society

Jussi Kivisto in Person

HEARD: February 19, 2016

ENDORSEMENT

Introduction

[1] There are two motions before the court.

1. The Law Society of Upper Canada (the “Law Society”) moves to quash the respondent Jussi Kustaa Kivisto’s notice of appeal dated January 15, 2016 to this court from the order of the Law Society Appeal Division dated January 13, 2016 (the “January 13, 2016 Order”);

2. Mr. Kivisto moves for an order staying the January 13, 2016 Order and as well the entire conduct proceeding against him including a December 11, 2015 Order of the Law Society Hearing Division (the “December 11, 2015 Order”).

[2] For the reasons that follow, I allow the Law Society’s motion to quash Mr. Kivisto’s notice of appeal. In my view the January 13, 2016 Order is not a final decision or order within the meaning of s. 49.38 of the Law Society Act, R.S.O. 1990, c.L.8 (the “Act”) and accordingly no appeal lies to this court. Further, in the absence of an appeal, Mr. Kivisto’s motion for a stay of the proceedings, which is based on his appeal, is dismissed as being moot.

Background

[3] By notice of application issued July 24, 2014, the Law Society brought a conduct application against Mr. Kivisto alleging that he had engaged in conduct unbecoming and listed four particulars. An amended notice of application was issued by the Law Society on November 10, 2015.

[4] On November 17, 2015, Mr. Kivisto brought a motion before the Law Society Hearing Division to strike particular 1 in the amended notice of application. Particular 1 reads as follows:

The respondent, licensed to practice law in Florida and Illinois, was disbarred by an order of the Supreme Court of Florida dated September 28, 2010, having been found guilty of three counts of misconduct in connection with his conduct in two estates matters.

[5] Mr. Kivisto’s motion (together with other pre-trial motions) was heard by a Panel of the Hearing Division on December 10, 2015. On December 11, 2015, the Hearing Panel dismissed Mr. Kivisto’s motion “with reasons to follow.”

[6] Mr. Kivisto’s argument on the motion was that the two-year limitation period provided for in s. 4 of the Limitation Act, 2002, S.O. 2002, c. 24 prevented the Law Society from relying on the Report of the Referee in the Supreme Court of Florida dated December 17, 2008 and the September 28, 2010 Order of the Supreme Court of Florida disbarring him in support of its allegation in Particular 1 of the amended notice of application.

[7] On December 29, 2015, Mr. Kivisto filed a notice of appeal of the December 11, 2015 Order with the Law Society Appeal Division. At the same time, Mr. Kivisto brought a motion before the Appeal Division to stay the proceedings against him pending determination of his appeal of the December 11, 2015 Order. In response, the Law Society brought a motion to quash the appeal on the ground that it lacked jurisdiction pursuant to s. 49.32(1) of the Act.

[8] Section 49.32(1) of the Act provides that a party to a proceeding before the Hearing Division may appeal a final decision or order of the Hearing Division to the Appeal Division.

[9] The two motions were heard by the Chair of the Appeal Division (the “Chair”) on January 12, 2016. For reasons released January 13, 2016, the Chair quashed Mr. Kivisto’s appeal on the grounds that the December 11, 2015 Order was not final as required by s. 49.32(1) of the Act and accordingly the Appeal Division had no jurisdiction. In the absence of an appeal, the Chair also dismissed Mr. Kivisto’s motion for a stay on the ground that it was moot.

[10] In his reasons of January 13, 2016 quashing Mr. Kivisto’s appeal, the Chair held that an appeal in a conduct application can only be commenced once a hearing panel has determined whether there was professional misconduct or conduct unbecoming and, if applicable, once a penalty decision has been made.

[11] Relying on the earlier decision of the Appeal Division in Law Society of Upper Canada v. Robson, 2013 ONLSAP 3, the Chair drew a distinction between a final order in civil proceedings as provided for in s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c.43 and a final order as provided for in s. 49.32(1) of the Act.

[12] On February 11, 2016, the Hearing Panel released its reasons dismissing Mr. Kivisto’s initial motion. The Hearing Panel concluded that, having regard to the provisions and purposes of both the Limitation Act and the Act, the Limitation Act has no application to conduct proceedings under the Act.

Discussion

[13] Section 49.38 of the Act provides that an appeal lies to this court from a final decision or order of the Appeal Panel.

[14] As stated by the Divisional Court in Opara v. Law Society of Upper Canada, 2015 ONSC 3348 (Div. Ct.) at paras. 15 and 16, the distinction between final and interlocutory orders has a different dimension when the appeal is from an appellate decision rather than a decision of first instance. In this case, however, given the order appealed from quashes an appeal from the order of the Hearing Panel, it is necessary to consider the nature and effect of both the December 11, 2015 Order and the January 13, 2016 Order: Mary Martha Coady v. The Law Society of Upper Canada, 2007 4300 (Ont. Div. Ct.) at para. 14.

[15] Mr. Kivisto submits that the dismissal of his limitation defence by the Panel was a denial of a substantive right and accordingly a “final” decision. As a result, the Appeal Panel erred in law in holding that the December 11, 2015 Order was not final. In support of his position, he relies on the decisions of the Court of Appeal in Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.) and Lax v. Lax, 2004 15466 (Ont. C.A.).

[16] Ball v. Donais was an appeal from a Rule 21 motion on a question of law raised by the pleadings concerning a limitation period under the Highway Traffic Act, R.S.O. 1980, c. 198. Lax arose from a summary judgment motion which considered the limitation period for enforcement of foreign judgments under the former Limitations Act.

[17] Ball v. Donais held that where an order deprives the defendant of a substantive right which could be determinative of the entire action, the order is a final order for the purposes of appeal. Lax held that notwithstanding that the summary judgment motion was dismissed allowing the action to go to trial, the motion judge had finally disposed of the limitation issue, thus removing it as a defence.

[18] Similarly in Lax the limitation defence could have been determinative of the action. The action concerned the enforcement of a foreign judgment obtained some nine years prior. The motion judge held that the 20-year limitation period applied which effectively ended the limitation defence. He further held that if the limitation period was six years, the facts as to when the defendant debtors were in Ontario were unclear, requiring a trial on the issue. Notwithstanding that the action was proceeding to trial, the motion judge’s decision in essence finally disposed of the limitation issue thereby removing a defence which could have been determinative of the entire action.

[19] In my view, the January 13, 2016 Order which quashed Mr. Kivisto’s appeal from the December 11, 2015 Order is not a final order as required by s. 49.38 of the Act for two reasons. First, even on the authority of Ball v. Donais, Lax, and similar cases, I do not consider that the nature and effect of either the December 11, 2015 Order or the January 13, 2016 Order is final. The allegation against Mr. Kivisto is conduct unbecoming. In support of that allegation, the Law Society has set out four particulars it relies on. While the December 11, 2015 Order deprives Mr. Kivisto of a limitation defence concerning the first particular, three particulars remain. The December 11, 2015 Order does not therefore deprive Mr. Kivisto of a substantive right that “could be determinative of the entire action.” Further, Mr. Kivisto has other defences in respect of particular one arising from the Law Society’s delay in proceeding.

[20] More importantly, however, and even if I am wrong that both the December 11, 2015 Order and the January 13, 2016 Order are not final based on the existing civil action jurisprudence concerning the distinction between final and interlocutory orders, I agree with the Chair of the Appeal Division that that jurisprudence is not applicable when determining whether an order is final under ss. 49.32(1) and 49.38 of the Act for the purposes of appeal.

[21] The Ball v. Donais line of cases concern the distinction between final and interlocutory orders in civil cases arise pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c.43. A civil proceeding, however, is quite different than a regulatory proceeding and specifically a conduct application under the Act.

[22] The purpose of the Act is to regulate lawyers and paralegals in Ontario (s. 4.1). Among its principal duties are protection of the public interest and acting in a timely, open and efficient manner (s. 4.2). Part II of the Act deals with conduct matters. A licensee (lawyer) is prohibited from engaging in professional misconduct or conduct unbecoming (s. 33). A determination of whether a licensee has breached s. 33 is conducted by the Hearing Panel (s. 34). The issue before the Hearing Panel is therefore whether the licensee (lawyer) engaged in professional misconduct or conduct unbecoming.

[23] When the word “final” in both ss. 49.32 and 49.38 of the Act is considered in the context of the Act as a whole and having regard to the purpose and objects of the Act, in my view, it means when there is a determination of professional misconduct or conduct unbecoming in a conduct application.

[24] Further, and as is pointed out by Mr. Sandler in Law Society of Upper Canada v. Robson, supra, at para. 31, the policy considerations that apply in the disciplinary setting under the Act are very different from those cited in the Ball v. Donais line of cases. In that regard, Mr. Sandler states: “…. The hearing process would soon grind to a halt if mid-hearing rulings were generally subject to immediate appeal. Seized panels would be unable to fulfill their responsibilities in a timely and effective way. This has implications for the public, members of the profession, and the Society. This is especially so when it is remembered that a full hearing on the merits may make the appeal academic, and that there is an appeal from the final decision following the disciplinary hearing.”

[25] Accordingly, as the December 11, 2015 Order of the Hearing Panel does not finally determine the issue of whether Mr. Kivisto engaged in conduct unbecoming, it is not a final order within the meaning of both s. 49.32 and s. 49.38 of the Act. Pursuant to s. 49.38 of the Act, this court has no jurisdiction to hear Mr. Kivisto’s appeal.

Conclusion

[26] For the above reasons, therefore, the Law Society’s motion to quash Mr. Kivisto’s appeal is allowed.

[27] In light of my decision to quash Mr. Kivisto’s appeal, there is no basis upon which to entertain his motion to stay the conduct proceedings against him pending his appeal of the January 13, 2016 Order. The motion to stay was based solely on his appeal to this court. Accordingly, the stay motion is moot and is therefore dismissed.

[28] The Law Society is entitled to its costs of both motions on a partial indemnity basis. It has filed a Cost Outline seeking partial indemnity costs of $5,000 in total. Mr. Kivisto raised no objection to the amount claimed. In my view it is fair and reasonable having regard to the issues raised. Costs to the Law Society fixed in the total amount of $5,000.

L. A. Pattillo J.

Date of Release: March 7, 2016