CITATION: Yan v. Law Society of Ontario, 2023 ONSC 1290
COURT FILE NO.: 581/22
DATE: 20230223
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
BETWEEN:
NATHALIE XIAN YI YAN
Applicant/Moving Party
– and –
LAW SOCIETY OF ONTARIO
Respondent
Nathalie Xian Yi Yan, in person
Benjamin Kates and Kelsey Ivory, for the Respondent
HEARD: February 21, 2023
schabas J.
REASONS ON MOTION TO EXTEND TIME
[1] This motion to extend time to commence an application for judicial review was filed on October 18, 2022. This was about eight months after the decision of the Complaints Review Commissioner of the Law Society of Ontario dated February 7, 2022, which the moving party, Nathalie Xian Yi Yan (“Yan”), seeks to review.
[2] Following receipt of the CRC’s decision, Yan chose to commence an appeal of the decision to this court. Yan did so despite being informed that there was no appeal from a decision of the CRC. This court then dismissed her appeal for want of jurisdiction on April 22, 2022: Yan v. Durcan, 2022 ONSC 2426. Yan then sought to appeal to the Court of Appeal. Only after Trotter J.A. confirmed on September 29, 2022 (Endorsement, Court of Appeal File No. COA -22-OM-0029) that there was no right of appeal did Yan bring this motion, long after the 30-day requirement to commence an application for judicial review as set out in s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[3] Section 5(2) of the JRPA places a burden on the moving party to satisfy the court that there are “apparent grounds for relief” and that “no substantial prejudice or hardship will result to any person affected by the delay.” However, this does not mean that the court cannot also consider the reasons for the delay by the moving party. Ultimately, the decision remains a matter of discretion, albeit discretion that includes consideration of the factors in s. 5(2) of the JRPA: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 10-19; Belyavsky v. Walsh, 2022 ONSC 3135.
[4] I am not satisfied that there are “apparent grounds for relief” as required by s. 5(2) of the JRPA. The CRC found it reasonable for the LSO not to investigate its licensee, Rebecca Durcan (“Durcan”), for not attending, as a Crown witness, Yan’s Provincial Offences Act proceeding. The CRC noted, among other things, Durcan's evidence that she was never served with a summons or subpoena to attend court, the absence of any evidence of a subpoena having been served on Durcan, and that the arresting officers also did not attend, which led to the dismissal of the charges against Yan.
[5] Yan does not advance, or purport to advance, grounds impugning the reasonableness of the CRC decision. Rather, this motion and the proposed application are the latest of many proceedings that Yan has brought in the courts in response to disciplinary proceedings taken against her by the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario. Durcan is counsel to the CTCMPAO. In October 2018, the Discipline Committee of the CTCMPAO found Yan to have committed professional misconduct, a decision upheld by this court on October 5, 2022: Yan v. CTCMPAO, 2022 ONSC 5464.
[6] Since the finding of the Discipline Committee, Yan has brought many proceedings in the Superior Court and the Divisional Court, and to the Health Professions Appeal Review Board. Most, if not all, of the proceedings arise from her grievance with the actions and findings of the CTCMPAO. This has included lawsuits against the individual who investigated Yan’s conduct, and against Durcan, among others. These actions, and others, were struck out without leave to amend by Sweeny R.S.J. on October 19, 2021: Yan v. Durcan, 2021 ONSC 6953, Yan v. Yee, 2021 ONSC 6957. Regional Senior Justice Sweeny’s decisions were recently upheld by the Court of Appeal: Yan v. Hutchinson, 2023 ONCA 97.
[7] Yan’s position on this motion, and in the proposed application, is also focused on attacking the CTCMPAO, and not on the unreasonableness of a very narrow decision by the CRC. Although Yan has made other complaints to the LSO, the only issue before the CRC was whether the decision of the LSO to close the complaint relating to Durcan not attending court for Yan’s Provincial Offences Act charge was reasonable. The narrow scope of the role of the CRC was something that had to be impressed on Yan by the CRC as Yan attempted to also raise issues regarding the CTCMPAO decision with the CRC. As the CRC stated in her decision letter:
As indicated to you previously, many of the issues in your complaint against Ms. Durcan involve legal issues which are outside the regulatory jurisdiction of the Law Society and are not subject to review by me. You indicated during the Review Meeting that you have perfected your Divisional Court appeal of the CTCMPAO decision. That is the appropriate forum to address your concerns regarding the decision of the College. Should the Court make any comment on the conduct of Ms. Durcan in its decision, you may wish to bring that to the attention of the Law Society.
[8] The CRC concluded that the LSO had acted reasonably in closing the file, and Yan has not provided any basis to challenge the reasonableness of the conclusion of the CRC. In my view, the proposed application for judicial review is devoid of merit and contains no “apparent grounds for relief.” The motion to extend time should be dismissed on this basis alone: Unifor at paras. 21-22.
[9] Although it is not necessary for me to consider any hardship or prejudice, it has been observed that prejudice may be presumed: John Bruce Robinson Construction Limited v. Hamilton (City), 2022 ONSC 911 at para. 10. In the circumstances of this case, I find that Durcan, as a “person affected by the delay”, would be prejudiced and suffer hardship as she would continue to have the prospect of a regulatory proceeding being taken against her while the proposed application for judicial review proceeded.
[10] The LSO also submits that the application should not be permitted to proceed as it constitutes a collateral attack on the CTCMPAO decision and is an abuse of process. This was the finding of Sweeny R.S.J. and the Court of Appeal in striking Yan’s civil actions: Yan v. Hutchinson at paras. 40-41. The proposed application, and Yan’s argument on this motion, supports a similar conclusion. Exercising my discretion under s. 2(5) of the JRPA, and my inherent discretion on whether a matter should be judicially reviewed, I would also dismiss the motion on this basis: Talwar v. Grand River Hospital, 2022 ONSC 2166 at paras. 20-21; Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 at para. 43.
[11] The motion for an extension of time in which to bring an application for judicial review is dismissed. As requested by the LSO, Yan shall pay costs to the LSO of $5,000.
Paul B. Schabas J.
Released:February 23, 2023
CITATION: Yan v. Law Society of Ontario, 2023 ONSC 1290
COURT FILE NO.: 581/22
DATE: 20230223
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
NATHALIE XIAN YI YAN
Applicant/Moving Party
– and –
LAW SOCIETY OF ONTARIO
Respondent
REASONS ON MOTION TO EXTEND TIME
Schabas J.
Released: February 23, 2023