CITATION: James v. Law Society of Ontario, 2020 ONSC 1167
DIVISIONAL COURT FILE NO.: 530/18 DATE: 20200219
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
KENNETH JAMES
Patrick Bakos, for the Appellant (Respondent)/Moving Party
Appellant (Respondent)/Moving Party
– and –
LAW SOCIETY OF ONTARIO
Tanus Rutherford, for the Respondent (Applicant)/Responding Party
Respondent (Applicant)/Responding Party
HEARD at Toronto: February 19, 2020
PATTILLO J. (Orally)
[1] This is a motion by Mr. James to set aside the order of the Registrar dated September 18, 2019 dismissing for delay his appeal from the Order of The Law Society of Ontario’s Tribunal Appeal division dated July 16, 2018.
[2] The overriding consideration on a motion such as this is the “justice of the case” which involves a consideration of the merits of the appeal together with the additional factors such as length of and explanation for the delay; length of and explanation for the delay in moving to set aside the dismissal and prejudice to the respondent (see: Sickinger v. Sickinger, 2017 ONCA 760 at para. 13, Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731 and Nemmour v. Dixon Hall Toronto, 2017 ONSC 1361 (Div. Ct.)).
[3] On November 14, 2016, The Law Society Tribunal Hearing Division found Mr. James guilty of professional misconduct for knowingly assisting in mortgage fraud in respect of 12 real estate transactions that occurred between early 2002 and late 2005.
[4] On June 26, 2017, the Hearing Division issued its penalty decision revoking Mr. James’ license to practice law and awarding costs to The Law Society of $242,169.00 payable within three years.
[5] On July 16, 2018, the Appeal Division dismissed Mr. James’ appeal.
[6] The Notice of Appeal filed August 24, 2018, sets out numerous grounds of appeal concerning both the hearing panel decision and the appeal panel decision.
[7] An appeal from the Order of the Appeal Division to the Divisional Court is pursuant to sections 49.38 and 49.39 of the Law Society Act, RSO 1990, c.L -18.
[8] The standard of review which applies is the appellant’s standards of review (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37). While I am of the view that some of the grounds of appeal raised by Mr. James have little or no merit given that they concern issues decided by the Hearing Division or matters not raised before the Appeal Division, I am not in a position on the material before me, to find that the proposed appeal has not merit. Simply put, the issues have not been developed sufficiently.
[9] Turning to the reasons for the delay, I find Mr. James’s reasons not very compelling. Mr. James had 30 days from the filing of his notice of appeal (until September 24, 2018) to perfect the appeal (Rule 61.09(1)(a)). Rather than do that, Mr. James requested a copy of the transcript of the proceeding before the Appeal Division. In my view, the transcript was not required given that it is an appeal from the Appeal Division.
[10] The transcript was ready on October 15, 2018. Accordingly, Mr. James had until December 15, 2018 (60 days) to perfect his appeal (Rule 61.09(10)(b)).
[11] On August 27, 2019, some 8.5 months after the time required to perfect the appeal, allowing for the time from the transcript availability, the Registrar issued a notice of intention to dismiss in 10 days if not perfected. Needless to say, the appeal was not perfected and on September 18, 2019, the Registrar issued his order dismissing for delay.
[12] Mr. James’s reasons for delay can be summarized as:
a. complexity;
b. too busy; and,
c. The Law Society’s trusteeship application.
[13] While the proceedings against Mr. James before the Hearing Division were lengthy and involved twelve transactions, the complexity was greatly reduced in respect of the facts and issues before the Appeal Division. It will be even more focused before this Court. Accordingly, I do not consider complexity to be an excuse for the delay here which is presently 19 months from the date of the Appeal decision and 14 months from the time that Mr. James was required to perfect his appeal.
[14] Nor do I find the excuse that both counsel and Mr. James were too busy to perfect the appeal to be a reasonable excuse for delay, especially given the length of delay in this case. It signals to me that the appeal is not a priority for either counsel or Mr. James.
[15] Mr. James further submits that the appeal cannot be perfected until the completion of The Law Society’s trusteeship application dealing with his trust account. Mr. James submits that there is evidence of The Law Society’s bias and conflict of interest against him in that proceeding which will not be clear until it is terminated.
[16] There is no mention of the trusteeship proceeding in the Appeal Division decision. It has been an ongoing proceeding since 2014. In 2016, Mr. James brought a motion before McEwen J. who is case-managing the matter, to terminate the trusteeship. Justice McEwen declined to do so on the basis that the Hearing Division decision concerning Mr. James’ disciplinary proceeding, was under reserve (it was released about three weeks later); The Law Society had recently convened an investigation against Mr. James involving allegations of misuse of trust funds; and 13 client matters remained to be resolved concerning the trust account.
[17] Notably, McEwen J. deferred the issue of termination of the trusteeship noting that Mr. James was at liberty to bring a motion to terminate the trusteeship in the future. It has been more than three years and there is no evidence before me that Mr. James has brought such a motion. Yet, he wants to wait until the trusteeship is terminated. In my view, the trusteeship proceeding is completely irrelevant to Mr. James’ appeal. It is a totally separate proceeding. Further, and as I have noted, it was not raised before the Appeal Division in his appeal from the Hearing Division.
[18] Next, while there has been some delay in proceeding with this motion, it was brought on time and in my view, there is really no issue of delay that arises out of it that is relevant to this motion.
[19] Finally, I agree with Mr. James that there is no prejudice to The Law Society in permitting the appeal to proceed. The Law Society submits that it is in the public interest to proceed with discipline proceedings expeditiously. While I agree with that, this matter is not the posterchild for expeditious proceedings.
[20] Circling back to justice of the case and having regard to all of the above, I have come to the conclusion that the Registrar’s Order should be set aside but on strict terms. While Mr. James has indicated he is no longer practicing law, I recognize his wish as he submits to clear his name. Given what I consider to be the very lengthy delay in perfecting this matter, without any reasonable excuse, I impose the following terms as part of my Order:
(1) Mr. James has 21 days from today to perfect his appeal, failing which it will be dismissed;
(2) The Law Society shall file its responding factum in accordance with the Rules;
(3) The appeal is set down to be heard on June 16, 2020 for a half day;
(4) Any change in the time allocated or the date set for the hearing shall be done on motion before Corbett J., the administrative judge of the Divisional Court.
[21] Mr. James seeks costs of $2,100 (bill of costs, partial indemnity $8,700), payable within 21 days. The Law Society’s initial position was no costs but, after submitting the time required to review the motion material, changed to seek costs of $2,000. Given that in my view, success was divided, the proper order is to fix costs at $2,100 and order that they are payable in the cause of the appeal.
___________________________ L.A. PATTILLO J.
Date of Oral Reasons for Judgment: February 19, 2020
Date of Release: March 2, 2020
CITATION: James v. Law Society of Ontario, 2020 ONSC 1167
DIVISIONAL COURT FILE NO.: 530/18 DATE: 20200219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KENNETH JAMES
Appellant (Respondent)/Moving Party
– and –
LAW SOCIETY OF ONTARIO
Respondent (Applicant)/Responding Party
ORAL REASONS FOR JUDGMENT
PATTILLO J.
Date of Oral Reasons for Judgment: February 19, 2020
Date of Release: March 2, 2020