CITATION: Isaac v. Law Society of Ontario, 2021 ONSC 8265

DIVISIONAL COURT FILE NO.: 899/21

DATE: 2021-12-15

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DAVID GRANT ISAAC v. LAW SOCIETY OF ONTARIO

BEFORE: D.L. Corbett J.

HEARD: In Chambers, In Writing

ENDORSEMENT

[1] Mr Isaac commenced an application for judicial review on November 23, 2021, seeking review of orders made by the Law Society Tribunal on October 28, 2021, November 4, 2021 and November 22, 2021.

[2] The three impugned orders are directions provided during an ongoing hearing, as follows:

(a) on October 28, 2021: denying a stay of the proceeding but permitting the applicant to re-open his case, on conditions;

(b) on November 4, 2021: rejecting arguments from the applicant to reverse its earlier decision respecting the stay motion and extending the time for submissions from the applicant; and

(c) on November 22, 2021: finding that the applicant failed to meet the conditions or file materials as directed, and therefore directing that the applicant could no longer re-open his case and setting deadlines for final submissions.

[3] At the time of these directions, the Law Society had closed its case before the Hearing Panel, after a 12-day hearing. Final argument is apparently pending before the Hearing Panel.

[4] The applicant lists no grounds for his application in his Notice of Application.

[5] By my direction, notice was issued pursuant to R.2.1.01 that the court is considering dismissing the application pursuant to R.2.1.01 as frivolous, vexatious and an abuse of process. I directed that the applicant be given the following explanation for the R.2.1.01 Notice:

a) the application seeks to challenge procedural rulings of the tribunal mid-hearing;

(b) the application will be moot by the time it can be heard in this court;

(c) the parties will have rights of appeal and/or review from the final decision of the tribunal below; and

(d) there is no basis upon which a stay would be granted of the proceedings below pending determination of this application.

Therefore, it appears that this application is premature, will be moot before it can be heard, raises issues that can be addressed on any appeal from a final order below, and is on its face an abuse of process designed to try to defeat the orderly process below.

In addition, since it appears that the application is devoid of any conceivable merit and the applicant is legally trained, the court is considering making an order restricting the applicant's access to legal proceedings in this court without first obtaining permission from an administrative judge of the court. The applicant should address submissions in respect to this possible relief as well as the potential dismissal of his application, in his response to the R.2.1.01 notice.

[6] The applicant responded by email as follows:

I am in receipt of your communication of November 24, 2021.

I am referring this matter to the Canadian Judicial Council, as I have grave concerns about the propriety of the content of this letter (some of which is clearly legally incorrect) and how it came to be and was initiated.

There is no indication that it was by request of a party, so it appears to be on the sole initiative of Justice Corbett, which is very difficult to comprehend, especially as to expeditiousness, being sent the day after the Application was issued.

Did someone at the Law Society and/or the Law Society Tribunal have any involvement in the initiation of this judicial response?

Your letter imparts an indication of apparent bias on the part of Justice Corbett, in favour of the Law Society of Ontario and I am aware of the recent article in the Law Times of October 13/21, wherein one Jussi Kivisto, in a case involving the LSO, raised this issue of REASONABLE APPREHENSION OF BIAS, in reference

to Justice Corbett.

I will be asking Chief Justice Morawetz to remove Justice Corbett from any further involvement in file # 899/21, in addition to rescinding the notice pursuant to R.2.1.01, which he directed be issued.

Furthermore, I will be reporting this matter to the CJC, as indicated.

Your letter states "the applicant is legally trained". FYI, I am a 1972 graduate of Dalhousie Law School and entered the LSUC articling program the same year, being CALLED TO THE BAR in 1974, and have practiced before all Courts in Ontario since then, making me a senior practitioner/ litigator and a Licensed Member of the Law Society of Ontario, for almost fifty years.

Additionally, I am also a Certified Mediator. So the reference to me, as merely "legally trained", is both grossly inaccurate and disrespectful.

Please forward this email to Chief Justice Morawetz, as I have been unable to ascertain his contact coordinates.

[7] Mr Isaac was then advised as follows by court staff:

Justice Corbett directs me to advise you as follows:

The court has received a response from Mr Isaac to the R.2.1.01 notice issued by the court. However, the response does not address the substantive concerns giving rise to the R.2.1.01 notice.

Mr Isaac may still provide a substantive response to the R.2.1.01 notice if he wishes to do so, and he has until December 9, 2021 in which to make that response.

Finally, it is, of course, open to Mr Isaac to bring a complaint to the Canadian Judicial Council or to the Chief Justice. However, it is not proper for him to threaten to do these things in his response to this court. Second, the Chief Justice does not sit on appeal from this court and has no jurisdiction to rescind the R.2.1.01 notice. This court will decide the R.2.1.01 issue once it receives a substantive response from Mr Isaac or the deadline for such a response has passed.

As requested by Mr Isaac, this court will forward a copy of Mr Isaac's communication to the Office of the Chief Justice.

[8] By email sent December 10, 2021, Mr Isaac responded to the R.2.1.01 notice as follows:

(a) He repeats the contents of his first email in response to the R.2.1.01 notice.

(b) The R.2.1.01 Notice, itself, contains no particulars. Mr Isaac argues particulars are “required” in order to respond to the notice. He describes the “covering email” as an “attempt to set out particulars”.

(c) Mr Isaac argues that the Judicial Review Procedure Act permits challenges to be brought to Tribunal rulings mid-hearing. He argues that this jurisdiction exists so that this court can exercise its oversight function with “an early and expeditious remedy”. He describes the concern raised by the court as “improper” and failing to meet the criteria for a Notice pursuant to R.2.1.01.

(d) Mr Isaac notes that the mootness concern is tied to the issue of an interlocutory stay pending the hearing of the application. He expresses concern that the court has prejudged the issue of a stay, and by the expression of the court’s concern, that the court has suggested that a stay would not be granted even on consent.

(e) In respect to the availability of a remedy after a final disposition below, Mr Isaac responds that this remedy is inadequate where that will mean that the party will suffer needlessly through a “long, stressful and expensive process” that would not be required if the application succeeds.

(f) Mr Isaac adds that the process at the Law Society is “in-house” and therefore “not independent” and he notes that there is no “review process” at the Law Society, unlike many other tribunals in Ontario.

(g) Mr Isaac states that the second paragraph of the explanation for the R.2.1.01 Notice “incorrectly threatens” a remedy that is only available on motions and is not available on applications (an order that a party bring no further proceedings and take no further steps without prior permission from the court).

(h) Mr Isaac advises that he was not “threatening” to make a complaint to the Judicial Council because he has since initiated that complaint.

(i) Mr Isaac states that there appears to have been influence from the Law Society in the issuance of the R.2.1.01 Notice. If the process was initiated by the Law Society, he argues that this should have been stated on the R.2.1.01 Notice.

(j) Mr Isaac argues that if there is a defect in the proceeding, he should be given an opportunity to rectify it rather than having his proceeding dismissed out of hand.

(k) Mr Isaac concludes (before he reviews some caselaw) that “it is hard to understand the actions of the Court herein, on its own motivation, attempting to end this Application so expeditiously, using the protocol of R.2.1.”

[9] Mr Isaac has failed to address the prematurity concerns raised by this application. For the reasons that follow, the application is dismissed without costs.

Prematurity

[10] This court has recently reviewed the law on prematurity: Awad v. Allstate Insurance Company, 2021 ONSC 8108. I do not fault the applicant for not having reviewed Awad – it was just recently released. However, jurisprudence on the principle of prematurity should have been addressed in his submissions. To quote two longstanding authorities in this area (both quoted in Awad):

“[A]bsent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until effective remedies are exhausted” Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, per Stratas J.A.

For some time now, the Divisional Court has… taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion…. Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 OR (3d) 798 at 800.

[11] Exceptional circumstances can lead this court to entertain an appeal or judicial review of an interlocutory decision of an administrative tribunal. Mr Isaac has not identified any exceptional circumstances in this case.

[12] The impugned rulings were made respecting the schedule of steps in the proceedings below and refusing to grant a stay of proceedings at the conclusion of the evidence but before final argument. The potential prejudice Mr Isaac will suffer if this court does not intervene now (on the face of the decisions below) is that he will be required to complete the hearing – which is now almost complete. It is this “prejudice” that is at the root of the abuse of process inherent in this proceeding: this application can serve no purpose unless a hearing nearing completion at the Law Society is interrupted by this court to hear an application resecting mid-hearing rulings. This is the precise mischief cautioned against in the jurisprudence respecting prematurity.

Rule 2.1.01

[13] Rule 2.1.01 should be invoked to dismiss a case only in the “clearest of cases”. If there was a tenable argument that this case fits into the category of “exceptional circumstances” sufficient to avoid the principle of prematurity, then this court should leave the issue to be addressed either on a motion to quash brought by the respondent or by the panel deciding the application itself. However, if the application is doomed to fail because it is premature, then the parties and the court should be spared the expense, time and potential delay involved of the application process. The authorities cited by Mr Isaac respecting R.2.1.01, including my own decisions in Humphries v. AG Ontario, 2020 ONSC 4460 and Simpson v. Chartered Professional Accountants of Ontario, 2016 ONSC 806, state these principles clearly. The recent case of Awad restates these principles and applies them in the context of a consideration of prematurity.

Triage and Case Management in Divisional Court

[14] Mr Isaac sees something suspicious in the alacrity with which the R.2.1.01 process has unfolded in this court. It has unfolded as it should.

[15] Since the onset of COVID-19, Divisional Court has been undertaking triage and case management of all cases and steps in cases in Divisional Court. The process is set out in detail in the court’s Notice to Profession, found on the court’s web site:

Notice to Profession – Divisional Court | Superior Court of Justice (ontariocourts.ca)

Mr Isaac followed that process to commence this application.

[16] Cases in which parties obtain or seek a stay pending the hearing are given priority in the triage process. So, given that Mr Isaac identified in his materials that he seeks a stay of proceedings before the Law Society, Divisional Court staff forwarded this case to an administrative judge for triage on a priority basis. It came to me and I was able to review it immediately. I formed the opinion that the case raises concerns under R.2.1.01 and directed that a notice be sent out. R.2.1.01(1) provides that the court may stay or dismiss a proceeding “on its own initiative”, and in Divisional Court, the court issues such notices in the ordinary course where, in the opinion of an administrative judge, that step is warranted. The respondent did not request that a R.2.1.01 notice be issued; had it done so, the respondent’s communication with the court would have to have been copied to Mr Isaac.

[17] Notice pursuant to R.2.1.01 is given by the Registrar using Form 2.1A. That form does not contain particulars or explanations of the concern(s) that have led the court to initiate the R.2.1.01 process. While the Rules do not require that an explanation be provided, it facilitates the R.2.1.01 process if the court provides an explanation. This was done in this case in the usual way: by email, as a direction from a judge. Mr Isaac provides no authority for his suggestion that this process is not proper, and no argument that the particulars were insufficient to enable him to respond to the court’s concerns.

[18] None of the concerns set out in the court’s explanation have been adjudged on a final basis. The purpose of the notice is to give the litigant an opportunity to explain why the case is not frivolous, vexatious and/or an abuse of process. The particulars – which Mr Isaac argues are necessary, and which this court considers desirable – inherently express the court’s concerns. All of this is in the context of the test to be met under R.2.1.01: only in the clearest of cases will the proceeding be dismissed.

[19] This application will be moot by the time it is heard unless a stay is granted pending the hearing. Mr Isaac acknowledges this point in his submissions. Granting a stay would interrupt an ongoing hearing, after 12 days of evidence, immediately before final argument. I am not aware of a single case in which this court has ordered a stay in such circumstances. To grant such a stay would be a gross “interfe[rence] with an ongoing administrative process”, the very evil cautioned against by Justice Stratas, as quoted above.

[20] Notices of application are typically sparse in detail, but one essential aspect of the notice is the section in which the applicant lists “grounds” for the application. None are listed in Mr Isaac’s Notice of Application. I accept Mr Isaac’s argument that a defect in the form of his pleading should not preclude him from recourse to justice, but in his R.2.1.01 submissions he still does not mention a single ground for his application. The impugned orders are scheduling directions and mid-hearing rulings. No conceivable basis for attacking them in this court on an interlocutory basis is set out anywhere. None comes to mind.

[21] Mr Isaac argues that a “long, expensive and stressful process” may be avoided if the application succeeds. This argument has no force on the eve of final argument when the process is almost complete.

[22] Mr Isaac argues that there is no “review” process at the Law Society. He is correct. But the Law Society has an Appeal Panel, a more formal process under which a party may challenge a hearing decision before recourse is available in this court. The failure of Mr Isaac to seek recourse to the Appeal Panel is another basis on which this application could be dismissed as premature. However, this point was not raised as a concern with Mr Isaac and I would not decide the issue on this basis without giving him an opportunity to address the issue. There is no need to delay disposition of this application for that purpose, though, since it is clear that the application should be dismissed under R.2.1.01 for other reasons.

[23] Mr Isaac argues that I have some predisposition in favour of the Law Society of Ontario because of the speed with which the R.2.1.01 Notice was issued, and because another litigant raised an allegation of bias against me in a Law Society discipline matter: Kivisto v. Law Society of Ontario, 2021 ONSC 6394. The allegation of bias in Kivisto was dismissed by a panel of this court. That case is unrelated to Mr Isaac’s case (in Kivisto, the lawyer was disbarred in other jurisdictions, and an appeal from his disbarment in Ontario turned on the “preclusive effect” that ought to be given to those foreign discipline proceedings, primarily an issue of law). I have no information respecting the allegations against Mr Isaac in the proceedings below.

[24] On its face, Mr Isaac’s application is premature. No argument has been made that it fits into the category of “exceptional circumstances” and, indeed, no grounds have been pleaded or described for the application. The application is dismissed pursuant to R.2.1.01, without costs.

[25] On the information before me, this is the first time this court has found Mr Isaac to have acted vexatiously. His response to the R.2.1.01 Notice has also been, itself, vexatious. I will not impose a restriction on Mr Isaac’s access to this court just based on this one misadventure. Should this sort of behaviour repeat in this court, the result could be different the next time.

“D.L. Corbett J.”

December 15, 2021