Court File and Parties
CITATION: Patel v. The Law Society of Ontario, 2022 ONSC 7146
DIVISIONAL COURT FILE NO.: 296/22 & 299/22
DATE: 2022-12-23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: SATYAM RAJNIKANT PATEL, Moving Party/Applicant
AND:
THE LAW SOCIETY OF ONTARIO, Respondent
BEFORE: Nishikawa J.
COUNSEL: Satyam Rajnikant Patel, self-represented
Rhoda Cookhorn & Nathan Prendergast, for the Respondent
HEARD at Toronto: December 16, 2022 (in writing)
ENDORSEMENT
Overview
[1] The Moving Party/Applicant, Satyam Rajnikant Patel, has brought two applications for judicial review of decisions of the Respondent, Law Society of Ontario (“LSO”), to close his complaints against two lawyers. The Applicant brings a motion for further production of documents by the LSO and to “pierce” the LSO’s privilege claims over internal communications and documents.[^1] The Applicant seeks “case law, internal administrative precedents, or other sources” relied upon by I&R Counsel in arriving at the decisions.
[2] After a schedule was set for the exchange of material on the motion, the Applicant brought a motion to strike the affidavit of Julianne Rawson, Intake and Resolution Counsel (I&R Counsel), submitted by the LSO on the motion. The Applicant submits that the affidavit is an abuse of process because it seeks to bolster I&R Counsel’s original decisions with further reasons and justifications. In the alternative, the Applicant seeks to cross-examine Ms. Rawson. The LSO seeks to have the motion quashed pursuant to Rules 2.1.01(6) and 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Analysis
Motion for Further Production
[3] In support of his motion, the Applicant submits that in arriving at the decisions that the lawyers in question did not give an undertaking, I&R Counsel applied an interpretation of the term “undertaking” that lacked a legal basis and that it failed to provide any justification for its finding. The Applicant’s memorandum of law largely puts forward his arguments on the merits of the applications for judicial review. The Applicant submits that the records produced by the LSO show no research to support its interpretation of undertaking and no research on “sharp practice.”
[4] The LSO opposes the motion for production on the basis that s. 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”), does not apply to a decision of I&R Counsel and that, therefore, it is not required to produce a record of proceedings. The LSO submits that in any event, it has produced all documents that I&R Counsel reviewed in making the decisions. The LSO further submits that its internal communications, memoranda and policies are subject to deliberative privilege.
[5] Section 10 of the JRPA requires that a record of proceedings be filed with the court “when notice of application for judicial review of a decision made in the exercise of a statutory power of decision is served on the person making the decision.” A statutory power of decision is defined as a power or right conferred by or under a statute to make a decision deciding or prescribing:
The legal rights powers, privileges, immunities, duties or liabilities of any person or party, or
The eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not.
[6] Under the Law Society Act, the LSO has the discretion to decide whether to investigate a complaint. Subsection 49.3(1) of the Act provides that the LSO “may” investigate when it receives information suggesting that licensee may have engaged in professional misconduct or conduct unbecoming.
[7] Where there is a discretion to investigate, courts have held that the decision to dismiss a complaint is not the exercise of a statutory power of decision: Batacharya v. College of Midwives of Ontario, 2012, ONSC 1072 (Div. Ct.); Harrison v. Association of Professional Engineers of Ontario, 2014 ONSC 6549 (Sup. Ct.), at paras. 17-18. The language of the Law Society Act is similar to the language in the provisions at issue in those cases under the Health Professions Procedural Code and the Professional Engineers Act respectively. This differs from the circumstances in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, where the complainant had a right under the Police Services Act to have her complaint proceed. In that case, the decision to screen out the complaint was found to be an exercise of a statutory power of decision and a record of proceedings was required. Unlike the Police Services Act, the Law Society Act does not require that every complaint be pursued, rather, it gives the LSO discretion to determine whether to investigate a complaint.
[8] In the absence of the exercise of a statutory power of decision, the court does not have inherent jurisdiction to order production of a record of proceedings: Harrison, at paras. 27-37.
[9] In my view, for the purposes of the motion, the decision of I&R Counsel did not affect the Applicant’s legal right. Therefore, the decision of I&R Counsel to close his complaints was not the exercise of a statutory power of decision. As a result, s. 10 of the JRPA does not apply, and the LSO does not have a duty to file a record of proceedings.
[10] In any event, the Applicant would not be entitled to the production of case law, internal administrative precedents, or other sources that I&R Counsel might have relied upon in arriving at the decisions. To the extent that such documents were considered by I&R counsel in arriving at the decisions, the LSO’s internal memoranda or precedents are subject to deliberative privilege. In LifeLabs L.P. v. (Ontario) Information and Privacy Commissioner, 2022 ONSC 5751 (Div. Ct.), at paras. 15-17, D.L. Corbett J. found that the internal policy, precedents, and memoranda from staff to the Commissioner are covered by deliberative and/or adjudicative privilege and were not producible as part of the record of proceedings.
[11] Certain other documents that the Applicant seeks, such as previous decisions relating to undertakings or sharp practice, do not form part of the record of proceedings, and would not have to be produced, irrespective of the application of any privilege.
[12] In order to displace deliberative privilege, the Applicant must show “clearly articulated and objectively sound reasons for believing that the process did not comply with the rules of natural justice or procedural fairness”: LifeLabs, at para. 15-17. In this case, the Applicant is dissatisfied with the material produced by the LSO because, in his view, it does not provide a legal basis for the dismissal of his complaints. Beyond that, however, the Applicant does not allege a breach of procedural fairness and has not articulated any basis for displacing either deliberative privilege.
Motion to Strike the Rawson Affidavit
[13] The LSO filed the Rawson affidavit in response to the Applicant’s motion for further production. In the affidavit, Ms. Rawson describes the LSO complaint process, the process before the Complaints Resolution Commissioner and the steps she took in arriving at the decisions.
[14] The motion to strike the affidavit is without merit. As I&R Counsel, Ms. Rawson has personal knowledge of the matters to which she deposed in the affidavit. The Applicant objects to the statements providing further information about the process before the Complaints Resolution Commissioner. However, the inclusion of such information in the Rawson affidavit raises no issue because the information is publicly available on the LSO website and the affidavit specifically refers to this source. Finally, the affidavit does not improperly attempt to justify the decisions after the fact. The affidavit simply details the process followed by Ms. Rawson in arriving at a decision on the Applicant’s complaints and refers to the reasons given in the letters advising the Applicant of the decisions.
[15] Given that the affidavit was submitted on the motion, at this time, it would serve no useful purpose to allow cross-examination on the affidavit.
Conclusion
[16] The motion for further production and to pierce the privilege is dismissed. The motion to strike the Rawson affidavit is also dismissed.
[17] The LSO submitted a costs outline for both motions showing a total of $9,918 in partial indemnity costs. Costs of both motions are fixed at $1,500, all inclusive, on a partial indemnity basis to be paid by the Applicant.
“Nishikawa J.”
Date: December 23, 2022
[^1]: The Applicant has mistakenly filed a notice of application seeking the relief detailed above. It will be treated as a motion.