David v. Law Society of Ontario, 2021 ONSC 4606
CITATION: David v. Law Society of Ontario, 2021 ONSC 4606
DIVISIONAL COURT FILE NO.: 636/20
DATE: 20210629
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Vivek David, Appellant/Applicant
AND:
Law Society of Ontario, Respondent
BEFORE: Tzimas, Kristjanson and Favreau JJ.
COUNSEL: Vivek David, the Appellant/Respondent, representing himself
David LeMesurier, for the Respondent
HEARD at Toronto (by videoconference): June 23, 2021
ENDORSEMENT
Introduction
[1] Mr. David seeks to appeal and judicially review a decision of the Law Society Tribunal Appeal Division dated February 17, 2021. In that decision, Adjudicator Peter C. Wardle denied Mr. David’s motion for a stay pending the appeal of a suspension order made by the Law Society Tribunal Appeal Division and for a permanent stay of all proceedings commenced against him by the respondent, Law Society of Ontario, on the basis of abuse of process.
[2] The Law Society of Ontario argues that the Divisional Court does not have jurisdiction to hear the appeal and that the application for judicial review should be dismissed as premature.
[3] At the beginning of the hearing, we heard submissions on these issues from both parties and then dismissed the appeal and application for judicial review with reasons to follow. These are the reasons.
Background
[4] In March 2020, the Assistant Deputy Attorney General, Criminal Law Division, made a complaint to the Law Society about Mr. David’s conduct in three criminal matters. The complaint alleged that there were serious issues about Mr. David’s competence to practice law.
[5] The Law Society began an investigation under s. 49.3(2) of the Law Society Act, R.S.O. 1990, c. L.8. As part of the investigation, the Law Society asked Mr. David to provide specified information and documents. He refused to do so, arguing that the investigation was overbroad and inappropriate. The Law Society then commenced a misconduct application against Mr. David for failing to cooperate with the investigation, contrary to s. 49.3(2) of the Law Society Act and Rule 7.1-1 of the Rules of Professional Conduct.
[6] The Law Society Hearing Division held a hearing into Mr. David’s alleged failure to cooperate on July 24 and 31, 2020. In a decision dated September 22, 2020, Member Murray Chitra, sitting alone, found that the investigator’s requests were relevant, reasonable, measured and appropriate and rejected Mr. David’s proposed justifications for not cooperating. The Hearing Division held a penalty and costs hearing on November 3, 2021. In a decision dated November 3, 2020, the Hearing Division suspended Mr. David’s license indefinitely until he provides a complete response to the investigation. The Hearing Division also imposed a one-month suspension for Mr. David’s failure to cooperate, to begin after the end of the indefinite suspension once Mr. David complies with his obligation to disclose the information requested by the Law Society.
[7] Mr. David has appealed the misconduct and penalty decisions of the Hearing Division to the Law Society Appeal Division. In advance of the hearing of the appeal, Mr. David brought a motion for a stay of his suspension pending appeal and for a permanent stay of all proceedings before the Law Society on the basis that they are an abuse of process. The hearing was conducted before Adjudicator Peter Wardle, sitting on his own, on January 19, 2021. In reasons dated February 17, 2021, the Adjudicator dismissed the motion. On the issue of a stay pending appeal, the Adjudicator held that that Mr. David had failed to satisfy any of the three branches of the test in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The Adjudicator held that there was no serious issue to be tried and that there was no evidence of irreparable harm. The Adjudicator also found that Mr. David had not fully complied with the obligations of suspended licensees and was continuing to impede the Law Society’s efforts to regulate him. Therefore, the balance of convenience did not favour a stay. On the motion for a permanent stay, the Adjudicator held that the allegations of abuse of process must be heard by the full appeal panel, rather than on a motion before a single adjudicator.
[8] Mr. David’s appeal from the Hearing Division’s decisions was heard by the Appeal Division on April 13, 2021. During the hearing before us, Mr. David and the Law Society confirmed that, as part of Mr. David’s arguments on appeal, he argued that all proceedings against him by the Law Society are an abuse of process. The Appeal Division panel reserved its decision which has not yet been released.
[9] Mr. David seeks to appeal and judicially review the Appeal Division’s decision of February 17, 2021 dismissing his motion for a stay pending appeal and for a permanent stay of all Law Society proceedings.
The Divisional Court does not have jurisdiction to hear the appeal
[10] Section 49.38 of the Law Society Act, R.S.O. 1990, c. L.8, provides for a right of appeal to the Divisional Court from a “final decision or order” of the Appeal Division. The Appeal Division’s decision dismissing Mr. David’s motion for a stay pending appeal and for a stay of all proceedings is not a final decision.
[11] A final decision of the Law Society Appeal Division is one that finally determines an appeal: The Law Society of Upper Canada v. Robson, 2014 ONSC 7254 (Div. Ct.), at para. 5. A decision dismissing a request for a stay pending an appeal is not a final decision. Accordingly, the Appeal Division’s decision of February 17, 2021, dismissing Mr. David’s request for a stay pending his appeal is not final.
[12] In addition, the Appeal Division’s refusal to grant Mr. David’s request to stay all Law Society proceedings is also not final. In its decision, the Adjudicator held that abuse or process was an issue properly raised before the panel hearing the appeal. This determination did not finally decide the appeal and, in fact, did not finally determine the issue of whether the proceedings brought by the Law Society against Mr. David are an abuse of process. The circumstances are similar to this Court’s decision in Coady v. Law Society of Upper Canada, where the Court decided that the Appeal Division did not make a final order when it decided not to determine an issue of jurisdiction on a preliminary basis.
The application for judicial review is premature
[13] Mr. David’s application for judicial review is premature and does not raise any exceptional circumstances.
[14] It is well established that, absent exceptional circumstances, the court will not interfere with an administrative process until it has run its course. To do otherwise would unnecessarily fragment the proceedings and cause delay: Landry v. Law Society of Upper Canada (Div. Ct.), at paras. 15-19. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para. 33, exceptional circumstances are very narrow and do not even include “[c]oncerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts … as long as that process allows the issues to be raised and an effective remedy to be granted”.
[15] There is no doubt that the application for judicial review is premature. Mr. David has appealed the Hearing Division’s decision to the Appeal Division, and the Appeal Division’s decision is pending. The proceedings before the Appeal Division have therefore not run their course.
[16] During the argument before us, Mr. David argued that there are exceptional circumstances in this case because the Law Society proceedings are an abuse of process. However, his argument on this issue focused on the merits of his allegations of abuse of process rather than on why the alleged abuse of process justifies this Court’s interference at this stage of the proceedings. In our view, the claim of abuse of process does not constitute exceptional circumstances. Mr. David has exercised his right of appeal to the Appeal Division where he has raised the issue of abuse of process. The Appeal Division’s decision is under reserve and it has not yet decided the issue of abuse of process. It would indeed require exceptional circumstances for this Court to interfere in the Appeal Division’s processes by making a decision on the issue of abuse of process while that very issue is under reserve by the Appeal Division. Mr. David has not identified any such exceptional circumstances. The fact that he alleges abuse of process on its own is not sufficient. The Appeal Division should be given an opportunity to decide the issue, after which, if he is unsuccessful, Mr. David will have a right to appeal that decision to the Divisional Court.
[17] Mr. David also argued that there are exceptional circumstances because his application for judicial review only raises an issue of law. In our view, this is not a sufficient basis for finding exceptional circumstances. In any event, the issue of abuse of process does not raise an issue of law alone. On the contrary, Mr. David’s arguments about why the Law Society proceedings constitute an abuse of process require a comprehensive review of the circumstances leading to the complaints against him.
[18] As indicated above, Mr. David’s argument that there are exceptional circumstances focused on the issue of abuse of process. He did not argue that his licence suspension constitutes exceptional circumstances. However, for the sake of completeness, we note that we do not find that this constitutes an exceptional circumstance. While Mr. David was entitled to bring a motion for a stay to the Appeal Division, once the stay was denied, his statutory recourse is to pursue the appeal. In this case, there is no evidence that there has been any delay in the hearing of the appeal. In addition, and more critically and as pointed out by the Adjudicator who heard the stay motion, at this point Mr. David’s licence remains suspended because of his ongoing refusal to provide the information requested by the Law Society. Were he to cooperate, his licence would be reinstated within a month. Mr. David’s right of appeal and ability to remedy the situation he finds himself in run counter to any claim of exceptional circumstances.
[19] Accordingly, we find that the application for judicial review is premature and there are no exceptional circumstances.
Additional issue regarding scope of issues raised on the appeal and application for judicial review
[20] This matter was originally scheduled to be heard by the Divisional Court on April 1, 2021. In advance of the hearing date, Corbett J., who had been case managing the matter, vacated the hearing date due to the state of Mr. David’s materials in CaseLines.
[21] Favreau J. then took over case management of this matter. In a case management endorsement dated May 28, 2021, Favreau J. gave the following directions for the hearing of this matter:
Mr. David seeks to challenge, both by way of an appeal and an application for judicial review, a decision of the Law Society Tribunal Appeal Division dated February 17, 2021 denying a motion for a stay. In addition, Mr. David seeks to judicially review all proceedings currently pending before the Law Society, including proceeding involving an appeal that has been heard by the Appeal Division but not yet decided.
As discussed during the case conference, these matters will be scheduled separately. Given that the first matter deals with Mr. David’s ability to practice law, I accept that there is some urgency and that the matter should be heard expeditiously. In fact, it had originally been scheduled for earlier this year but was adjourned given concerns over the state of documents uploaded by Mr. David to CaseLines in advance of the hearing. The second matter is more complex and possibly premature (given the pending decision from the Appeal Division), and therefore there is no need to schedule it on an expedited basis. This case management endorsement therefore addresses the scheduling of both matters. [Emphasis added.]
[22] The case management endorsement went on to set separate dates for the hearing of the appeal and application for judicial review challenging the dismissal of the motion for a stay and the application for judicial review challenging all Law Society proceedings. The second matter is currently scheduled to be heard on January 25, 2021 and includes a schedule for the exchange of materials.
[23] Despite these clear directions, at the hearing before us, as reviewed above, much of Mr. David’s argument focused on the abuse of process issue. While the panel allowed Mr. David to make these arguments, this means that the hearing currently scheduled for January 25, 2021 no longer raises a live issue. We have determined that Mr. David’s challenge to the Law Society proceedings by way of an application for judicial review on the basis that they are an abuse of process is premature. Accordingly, the January 25, 2021 hearing date and schedule for the exchange of materials are vacated. In the event Mr. David’s appeal to the Appeal Division is unsuccessful and he wishes to appeal that decision to the Divisional Court in accordance with section 49.38 of the Law Society Act, he can serve his notice of appeal on the Law Society and contact the Divisional Court to request a hearing date in accordance with the February 18, 2021 Notice to the Profession – Divisional Court:
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/div-ct-feb2021/
Conclusion
[24] The appeal and application for judicial review are dismissed.
[25] As the successful party, the Law Society is entitled to its costs which we fix in the amount of $7,000 all inclusive.
Tzimas J.
Kristjanson J.
Favreau J.
Date: June 29, 2021