Citation and Court Information
CITATION: Yan v Law Society of Ontario, 2019 ONSC 5036
DIVISIONAL COURT FILE NO.: DC-19-198
DATE: 20190828
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, D.L. CORBETT, and MYERS JJ.
B E T W E E N:
XIN YAN Applicant
Mr Yan, self-represented
- and -
LAW SOCIETY OF ONTARIO Respondent
Paul J. Pape, for the Respondent
Heard at Toronto: August 19, 2019
ENDORSEMENT
D.L. Corbett J.:
[1] Mr Yan seeks judicial review of the decision of the Law Society of Ontario (“LSO”) to close Mr Yan’s complaint file against LSO member Gerard V. Thompson on the basis that Mr Yan’s complaint did not disclose allegations of professional misconduct against Mr Thompson.
[2] For the reasons that follow, Mr Yan’s application for judicial review is dismissed.
[3] Mr Yan sued a business called “Rigtube” in Small Claims Court for damages allegedly caused to Mr Yan’s truck by faulty repairs. Mr Yan lost at trial. He appealed to the Divisional Court. He lost. He sought leave to appeal to the Ontario Court of Appeal and the Supreme Court of Canada. Leave was denied in both courts.
[4] Mr Thompson was Rigtube’s lawyer.
[5] Mr Yan complained to the LSO about Mr Thompson.
[6] LSO’s Intake & Resolution Counsel Cass reviewed the matter and concluded that Mr Yan’s complaint did not disclose professional issues concerning Mr Thompson and closed the file without further investigation. Mr Yan sought a review of this decision, which was conducted by Ms Bussin, LSO’s Director of Intake & Resolution. Ms Bussin also concluded that Mr Yan had not raised professional issues concerning Mr Thompson and agreed that the complaints file be closed without further investigation.
[7] Mr Yan challenges these LSO decisions. In support of his challenge he has filed a notice of application for judicial review, a record, and a factum. In all these materials I could not find a professional complaint about Mr Thompson.
[8] During the hearing Mr Yan used an interpreter at times and spoke to the court in English at other times. I am satisfied that I understood Mr Yan’s arguments, that he understood the questions asked of him by the court, and that I understood his answers to those questions.
[9] It is clear from Mr Yan’s written materials and his oral argument that he disagrees with decisions in his case against Rigtube. As was explained to him by this court, he does not have to agree with those decisions, of course, but he does have to accept them: his case against Rigtube has been decided, on a final basis, and it is not open him to challenge the decisions made in that case before this court now. That case is over.
[10] This court was concerned that Mr Yan did not understand this basic principle of justice, and began the hearing with a detailed explanation of the focus of the application before the court. It concerns Mr Thompson, and specifically, the complaint made about Mr Thompson by Mr Yan. The LSO did not identify any professional complaint about Mr Thompson in the materials provided to it by Mr Yan. Neither did this court.
[11] During the course of the hearing, Mr Yan was asked repeatedly to tell the court what his complaints are about Mr Thompson. The first several times, Mr Yan launched into a long narrative about past court decisions and his views of what they mean and what is wrong with them. Repeatedly Mr Yan was redirected back to the issues before this court, which concern Mr Thompson. Then the court pressed Mr Yan and told him that he would have to identify the things he was complaining about concerning Mr Thompson. His response was that he would do that “later”.
[12] He never did.
[13] At one point Mr Yan said that Mr Thompson had engaged in “corruption”. He did not say what it was that Mr Thompson did that amounts to “corruption”. At another point Mr Yan said that Mr Thompson “lied”. Again, Mr Yan provided no particulars. Nowhere in his materials, and not once during his oral presentation, did Mr Yan provide any concrete allegation of professional misconduct by Mr Thompson.
[14] In the materials before the LSO, Mr Yan complained about a costs award of $450 that was made in an interlocutory order on April 20, 2013, in the Small Claims Court. Mr Yan believes that this order was set aside by Lemon J. on October 6, 2014. Mr Yan is upset that the $450 was not repaid to him. He does not explain why this issue is a complaint about Mr Thompson. Further, the interlocutory order of April 20, 2013, was not set aside by Lemon J., and this was explained to Mr Yan by Petersen J., sitting as a single judge of the Divisional Court, in her decision dismissing Mr Yan’s appeal from the Small Claims Court judgment (Yan v. Rigtube, 2017 ONSC 5872, paras. 36-40). The LSO explained this to Mr Yan again in its decisions.
[15] Petersen J. stated as follows in dismissing the Small Claims Court appeal:
In the appeal before me, Mr. Yan is self-represented. Due to his unfamiliarity with court procedures, lack of knowledge of jurisprudence, absence of legal advice, and a language barrier, his arguments are not always clear, coherent or on point. Riglube’s counsel, Mr. Thompson, acknowledges that he sometimes finds Mr. Yan’s submissions to be confusing and difficult to follow. This creates challenges for Riglube in responding to Mr. Yan’s Notice of Appeal.
At the appeal hearing, however, Mr. Yan presented his oral submissions with the assistance of a certified Mandarin interpreter, which enabled me to follow his arguments. As set out below, his submissions reflected a fundamental lack of understanding about rules of evidence and court procedure, but his position did crystalize and became clear to me during the hearing. I am confident that I have captured his arguments in this decision.
Mr. Yan had requested that, if his appeal were allowed, his case be sent to the Ontario Court of Appeal for a fresh hearing. This unusual remedial request reflects Mr. Yan’s ignorance about court procedures and jurisdiction…. (Yan v. Rigtube, 2017 ONSC 5872, paras. 3-4, 65)
[16] I had similar concerns on the day of the hearing. And I have others. I am satisfied that Mr Yan understood the careful instructions he was given by the court at the outset of the hearing. I am also satisfied that he understood that the focus of this hearing was on his complaints about Mr Thompson, and that it was important for him to identify these complaints for us. This he did not do. He did fasten on other complaints (such as (i) the delay at the LSO between the initial decision by Counsel Cass and the review decision by Director Bussin; and (ii) Mr Yan’s view that characterizing his original representation as “legal” rather than “paralegal” was an error by Counsel Cass), which persuaded me that Mr Yan understands the file well, is competent enough with the written materials he has received from the court and the LSO to understand the nature of the case, and that his failure to respond to the key question in this case was not because of misunderstanding on his part.
[17] Mr Yan has not identified any conduct by Mr Thompson that could be the subject of an investigation by the LSO. It follows that the decisions of Counsel Cass and Director Bussin to this effect are reasonable. The application is dismissed.
[18] The court did not call upon the LSO in oral argument. The Law Society did, however, incur the expense of counsel to prepare a factum and compendium and to attend at the hearing. Mr Pape left the quantum of costs in our discretion and did not suggest an appropriate figure. In my view a “standard” figure for costs for an application of this kind is around $5,000. In view of the thorough materials filed by the LSO, I am satisfied that its reasonable costs equal or exceed this amount.
[19] Order to go as follows:
a. The application for judicial review is dismissed.
b. Mr Yan shall pay costs to the LSO of $5,000, inclusive, payable within thirty days.
c. LSO may take out this order without Mr Yan’s approval as to form and content.
D.L. Corbett J.
I agree _______________________________
Kiteley J.
I agree _______________________________
F.L. Myers J.
Dated: August 28, 2019
CITATION: Yan v Law Society of Ontario, 2019 ONSC 5036
DIVISIONAL COURT FILE NO.: DC-19-198
DATE: 20190828
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, D.L. Corbett and Myers JJ.
BETWEEN:
XIN YAN Applicant
- and -
LAW SOCIETY OF ONTARIO Respondent
ENDORSEMENT
D.L. Corbett J.
Released: August 28, 2019