CITATION: Law Society of Ontario v. Schulz, 2023 ONSC 3943
DIVISIONAL COURT FILE NO.: 509/22
DATE: 20230704
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Newton, Nishikawa JJ.
BETWEEN:
Law Society of Ontario
Appellant
– and –
Martin Christopher Schulz
Respondent
Sean Dewart and Jeanine Farmer, for the Appellant
Martin Christopher Schulz, in person
HEARD at Toronto: April 12, 2023 (by videoconference)
reasons for decision
Nishikawa J.
Overview
[1] The Respondent, Martin Christopher Schulz, is a lawyer practising in the areas of family law, real estate, and wills and estates. In 2016, the Respondent was convicted of possession of child pornography. He was sentenced to 45 days imprisonment and three years’ probation.
[2] On December 17, 2021, a panel of the Hearing Division of the Law Society Tribunal (the “Tribunal”) found that the Respondent had engaged in conduct unbecoming a licensee and suspended his licence to practice for nine months. The Law Society of Ontario (“LSO”) appealed the decision to the Appeal Division of the Tribunal. In its decision dated August 10, 2022, the Appeal Division dismissed the appeal and upheld the penalty imposed by the hearing panel (the “Decision”). The Appeal Division also rejected the LSO’s argument that the hearing panel was improperly constituted because of the absence of a lay adjudicator on the panel. The LSO appeals the Decision to this court.
Issues
[3] On appeal, the LSO raises the following issues:
(a) Did the Appeal Division err in finding that the hearing panel had jurisdiction to hear the LSO’s application in relation to the Respondent even though the hearing panel did not include a lay adjudicator, as required by s. 1(2) of O. Reg. 167/07?
(b) If not, did the Appeal Division err in concluding that the penalty imposed by the hearing panel was fit?
Background
The Criminal Proceeding
[4] On November 26, 2013, the Respondent was criminally charged with two counts of possession of child pornography, and one count of making child pornography available. The second count of possession and the charge of making child pornography available was withdrawn by the Crown. On March 23, 2016, the Respondent was convicted on the remaining count of possession.
[5] On May 31, 2016, the Respondent was sentenced to 45 days imprisonment (the minimum sentence at the time) to be served intermittently, three years’ probation, and a ten-year prohibition on the use of internet-connected devices for reasons other than employment or legal purposes. The Respondent’s appeal to the Court of Appeal was unsuccessful. His application for leave to appeal to the Supreme Court of Canada was denied. His probation was completed without incident in July 2019.
[6] The Respondent reported the criminal charges to the Law Society but declined to provide an undertaking to cease practicing law pending the outcome of the criminal proceeding. In June 2016, following the conviction, the LSO brought a motion for an interlocutory suspension of the Respondent’s licence. The motion was dismissed, however, the hearing panel imposed interlocutory restrictions on the Respondent’s practice. The Respondent has been prohibited from representing persons under the age of 18 and from being alone with persons under that age, except his own children.
[7] In August 2020, the LSO filed a notice of application to determine whether the Respondent had engaged in professional misconduct or conduct unbecoming of a licensee. The matter was heard virtually by a panel of the Hearing Division of the Tribunal on September 21 and 22, 2021.
The Hearing Division Decision
[8] On December 17, 2021, the hearing panel found, based on an agreed statement of facts, that the Respondent engaged in conduct unbecoming of a licensee. The Respondent had acknowledged viewing child pornography for two to three years before his arrest and that police found 45 unique photographs and 111 unique videos on various devices.
[9] The hearing panel rejected the LSO’s submission that the presumptive revocation framework that applies to certain forms of misconduct should be extended to apply to licensees found guilty of chid pornography offences. In rejecting the LSO’s submissions that a presumptive penalty of revocation should apply, the hearing panel found that presumptive revocation typically applies to “lawyerly misconduct,” that is, conduct that goes to the heart of lawyering and a lawyer’s duties and obligations. The hearing panel referenced the Appeal Division’s decision in Law Society of Ontario v. Manilla, 2021 ONLSTA 25, which cautioned against the “undue expansion” of the principle of presumptive revocation. The hearing panel observed that, unlike health care workers and teachers, the Law Society Act, R.S.O. 1990, c. L.8, did not require mandatory revocation for lawyers convicted of possessing child pornography.
[10] The hearing panel went on to apply the Aguirre[^1] factors to determine the appropriate penalty. The panel noted that the Respondent fully co-operated and was “profoundly remorseful”, that he had no prior disciplinary record, and that he was at a low risk of reoffending. The panel further took into consideration the duration of the offence, the number of victims, and the harmful nature of the offence, which amounted to ongoing sexual exploitation of children. After considering all of the factors, the hearing panel ordered a nine-month suspension of the Respondent’s licence.
[11] The hearing panel that heard the application against the Respondent was composed of three lawyers and did not include a lay adjudicator.
The Appeal Division Decision
[12] The LSO appealed the decision of the hearing panel to the Appeal Division, raising the following two issues: (i) whether the hearing panel lacked jurisdiction because no lay adjudicator was assigned to the panel; and (ii) whether the penalty was clearly unfit. The Appeal Division dismissed the appeal.
[13] In the Decision, the Appeal Division found that the LSO had failed to make a timely objection to the composition of the hearing panel. The Appeal Division found that the LSO did not meet the test to raise a new issue on appeal, which requires that the following three conditions be met:
(i) There is a sufficient evidentiary record to resolve the issue;
(ii) The failure to raise the issue at the hearing was not a tactical one; and
(iii) The refusal to raise the new issue would result in a miscarriage of justice.
Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939, at para. 35.
[14] The Appeal Division found that none of the three conditions had been met. The Appeal Division nonetheless considered the issue and rejected the LSO’s submission that the absence of a lay adjudicator nullified the panel’s jurisdiction or was otherwise procedurally unfair. The Appeal Division found no reversible error in the Vice-Chair or Chair exercising their discretion to compose a panel without a lay adjudicator. The Appeal Division found that the LSO failed to make a timely objection to the composition of the hearing panel.
[15] On penalty, the Appeal Division found no error in the hearing panel’s rejection of the LSO’s submissions regarding the presumptive revocation framework or in the determination of the penalty of a nine-month suspension.
Analysis
What is the Applicable Standard of Review?
[16] Because the LSO appeals a decision of the Appeal Division of the Tribunal, the appellate standards of review apply. Questions of law are reviewed on a correctness standard. A standard of palpable and overriding error applies to questions of fact and questions of mixed fact and law, unless there is an extricable question of law, which is reviewed for correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[17] The issue of the hearing panel’s jurisdiction to hear the LSO’s application, despite the lack of a lay adjudicator on the panel is a question of law or procedural fairness. As a result, a correctness standard applies.
[18] The issue of whether a nine-month suspension was an appropriate penalty in the circumstances is a question of mixed fact and law. On an appeal of a penalty, this court exercises significant deference to the Tribunal and will not interfere unless the penalty is manifestly unfit: College of Physicians and Surgeons v. Pierovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 17.
Did the Appeal Division Err in Finding that the Hearing Panel had Jurisdiction to Hear the Application?
[19] The LSO is a self-regulatory body whose role is to protect the public interest. In Pharmascience v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36, the Supreme Court of Canada observed that “[t]he privilege of professional self‑regulation therefore places the individuals responsible for enforcing professional discipline under an onerous obligation.”
[20] Under s. 4.2 of the Law Society Act, the LSO, in carrying out its functions, duties and powers, is required to have regard to the following principles:
The Society has a duty to maintain and advance the cause of justice and the rule of law.
The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
The Society has a duty to protect the public interest.
The Society has a duty to act in a timely, open and efficient manner.
Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.
[21] Section 1 of O. Reg. 167/07 (the “Regulation”) under the Law Society Act governs the composition of a hearing panel and states as follows:
1(1) The chair [of the Law Society Tribunal] or, in the absence of the chair, the vice-chair shall assign three members of the Hearing Division to a hearing to determine the merits of any proceeding other than an application [that may be heard by a single adjudicator]
(2) If the person who is the subject of the proceeding is a [lawyer],
(a) at least one of the members assigned under subsection (1) shall be an elected bencher licensed to practise law in Ontario as a barrister and solicitor; and
(b) at least one of the members assigned under subsection (1) shall be,
(i) a lay bencher, or;
(ii) a [lay adjudicator] approved by the Attorney General for Ontario.
(4) Subsection (2) ... does not apply if the chair or, in the absence of the chair, the vice-chair is of the opinion that,
(a) compliance with the subsection would unduly delay a hearing or otherwise hinder the timely and efficient scheduling of the hearing;
(b) assignment of a member in accordance with the subsection would likely give rise to an actual or perceived conflict of interest on the part of the member; or
(c) the subject matter or nature of the hearing is such that the assignment of one or more members with specific expertise or experience is advisable.
[22] In addition, s. 4.2(2) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, requires that in assigning members of the tribunal to a panel, the chair “take into consideration any requirement imposed by another Act or a regulation that applies to the proceeding that the tribunal be representative of specific interests[.]”
[23] In this case, the hearing panel that heard the LSO’s application against the Respondent was composed of three lawyers and, contrary to the requirement in s. 1(2)(b) of the Regulation, did not include a lay adjudicator.
[24] In the circumstances of this case, where the record does not support a finding that the Chair or Vice-Chair exercised their discretion under s. 1(4) of the Regulation to assign a panel with no lay adjudicator, the lack of a lay adjudicator resulted in the hearing panel being improperly constituted. Because the hearing panel was improperly constituted, it lacked jurisdiction to hear the application.
[25] I recognize that s. 1(4) of the Regulation gives the Chair or Vice-Chair of the Tribunal the discretion to depart from the mandatory requirements of s. 1(2) of the Regulation in three specific circumstances: (i) to avoid undue delay and ensure a timely hearing; (ii) where assignment of a member could give rise to an actual or perceived conflict of interest;[^2] or (iii) where the subject matter makes it advisable to assign one or more members with certain expertise. Where the Chair exercises the discretion to assign a panel with no lay adjudicator for one of the grounds provided in the Regulation, it is clear that the panel would have jurisdiction over the matter. In this case, however, and as further explained below, there is nothing to suggest that the discretion was exercised for a ground provided in s. 1(4).
[26] As noted above, the LSO regulates the legal profession in the public interest. The Supreme Court of Canada has expressly recognized that the presence of members of the public on discipline panels plays an important role in furthering public confidence in the administration of justice, which is a central concern of professional regulation:
There will always be one lay person on a panel of the Committee by operation of s. 55(4) [of New Brunswick’s Law Society Act]. Although they will presumably have less knowledge of legal practice than judges or the members of the Law Society, lay persons may be in a better position to understand how particular forms of conduct and choice of sanctions would affect the general public’s perception of the profession and confidence in the administration of justice. Since these are central concerns in the Act, the lay member of a Discipline Committee provides an important perspective for the tribunal in carrying out its duties.
Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 32.
[27] In addition to their broader perspectives, lay benchers and adjudicators are independent from members of the profession. They are appointed by the Lieutenant Governor in Council (for lay benchers) or approved by the Attorney General (for lay adjudicators). The regulatory requirement that they sit on every hearing panel is prescribed by a government-promulgated Regulation. As independent representatives of the public, who are neither elected nor subject to re-election by their professional colleagues, lay adjudicators serve to legitimize the tribunal’s decisions in the eyes of the public.
[28] In the circumstances of this case, where the misconduct related to a conviction for possession of child pornography, the presence of a lay adjudicator on the panel was essential to ensure that the hearing panel included a public interest perspective regarding the profession to maintain confidence in the administration of justice. Moreover, the absence of a lay adjudicator in a case of this nature gives rise to a concern that the public could potentially perceive the hearing panel as lacking the necessary degree of impartiality or independence. My comments should not be taken as suggesting that the panel that heard the application lacked impartiality or independence. In this case, however, the absence of a lay adjudicator on the panel raises a concern that the panel could be perceived by the public to be insufficiently impartial or independent.
[29] Moreover, the absence of a lay adjudicator on a hearing panel could give rise to the perception that the Tribunal, in disciplining a fellow member of the profession, was inappropriately or unjustifiably lenient in imposing a penalty. In the paragraph quoted above from the Supreme Court’s decision in Ryan, the Court specifically mentioned the “choice of sanctions” and how that might affect the public’s perception of the profession and confidence in the administration of justice.
[30] The Appeal Division’s conclusion that there was no error in the exercise of discretion by the Chair or Vice-Chair was based on its finding that there was no record upon which the panel might find some impropriety in excluding a lay adjudicator from the panel and no evidence on which it might conclude whether the discretion was “properly or improperly” exercised. The Appeal Division further found that the Chair is under no obligation to “record or document” the reason for appointing an all-lawyer panel. I find this reasoning problematic for the following reasons.
[31] First, in this case, there is nothing in the record to suggest that the Chair or Vice-Chair actually exercised their discretion to proceed with a panel of three lawyers, let alone that the discretion was exercised for one of the available grounds under s. 1(4) of the Regulation. The hearing panel made no mention of the composition of the panel at the outset of the hearing or at any other time.[^3] In the absence of an order, statement or any indication that the discretion not to assign a lay adjudicator to the panel was exercised, it is impossible to conclude that the discretion was exercised and that it was exercised for a ground provided in s. 1(4) of the Regulation. In my view, it cannot simply be assumed that the discretion was exercised, and that it was exercised for a ground available under the Regulation.
[32] Second, the Chair’s discretion to depart from the requirements of s. 1(2) is not absolute. Because the Chair can only exercise their discretion for one of the grounds stated in s. 1(4) of the Regulation, the issue is not whether a party challenging the composition of the panel can demonstrate impropriety in the Chair’s exercise of discretion. Rather, the issue is whether the discretion was exercised in accordance with s. 1(4) of the Regulation.
[33] A party challenging the composition of the hearing panel would rarely be able to put forward evidence that the exercise of discretion was not in accordance with s. 1(4) of the Regulation. It is for this reason that the Appeal Division’s finding that the Chair is under no obligation to “record or document” the reason for appointing an all-lawyer panel is particularly problematic. If this were the case, a party would never know whether the discretion to depart from s. 1(2) of the Regulation was exercised in accordance with the Regulation. In my view, because the Regulation requires that the Chair assign a lay adjudicator to the hearing panel and provides only limited grounds for departing from that requirement, the Chair must provide the basis for the exercise of discretion.
[34] One of the bases the Appeal Division gave for finding that the Chair was not required to notify the parties of the panel’s composition was that an agenda naming the adjudicators was published a week before the hearing, and the parties could have checked the adjudicator biographies on the Tribunal website. I agree that the parties can and ought to check that the panel is properly constituted. However, the burden of ensuring that the composition of the panel complies with the Regulation is not on the parties, but on the Chair.
[35] My finding is not intended to suggest that the Chair must render a written decision and/or provide extensive reasons when assigning a panel that departs from the requirements of s. 1(2) of the Regulation. The Tribunal’s current practice is to send out an agenda prior to the hearing identifying the panel members. Where the Chair has exercised their discretion under s. 1(4), the agenda could include a statement indicating under which of the three grounds the discretion was exercised.
[36] Alternatively, the information could be stated on the record at the outset of the hearing. While this could give rise to an objection to the composition of the panel at the outset of the hearing, it would be preferable that the objection be raised and addressed at the hearing stage rather than on appeal before the Appeal Division. It would also be open to the Chair to issue an order in advance of the hearing.
[37] Nothing in my reasons should be interpreted as constraining the discretion of the Chair under s. 1(4) of the Regulation to assign panels that depart from the requirements of s. 1(2).
[38] Given that the composition of the hearing panel raised an issue of jurisdiction, it was appropriate for the LSO to raise the issue on appeal, despite having failed to make an objection before the hearing panel. In any event, in my view, the test for raising a new issue on appeal was met. Because the issue was a question of law and/or procedural fairness, the sufficiency of the evidentiary record was not an issue. Moreover, there was no reason to believe that the LSO’s failure to raise the issue at the hearing was a tactical one. Finally, the refusal to raise the new issue would have resulted in a miscarriage of justice.
[39] Alternatively, if I am mistaken that the hearing panel lacked jurisdiction over the application because it was improperly constituted, I find that the Appeal Panel erred in failing to find that the absence of a lay adjudicator on the panel was a procedural defect that gave rise to a breach of procedural fairness. Given the societal harms that arise from child pornography and the exploitation of children, it was crucial that the public interest perspective be incorporated in this proceeding. The Regulation contemplates that this be done through the participation of a lay adjudicator on every hearing panel where a lawyer is subject to discipline. In my view, in this case, the absence of a lay adjudicator on the hearing panel raises an issue as to the fairness of the proceeding from a public interest perspective.
[40] In summary, the Appeal Division erred in law in finding that the composition of the hearing panel did not give rise to a lack of jurisdiction and in failing to remit the matter to a properly constituted panel.
[41] Given my findings on the first ground of appeal, I decline to consider the second ground. However, my conclusion regarding the composition of the hearing panel should not be taken as making any finding regarding the appropriateness of the penalty.
Conclusion
[42] For the foregoing reasons, the appeal is granted. The decision of the Appeal Division is quashed. The matter is remitted to the Hearing Division for a new hearing before a properly constituted panel.
[43] The LSO submitted a costs outline for a total of $19,788.87, all-inclusive, on a partial indemnity basis. The Respondent submitted a bill of costs totalling $24,405.18. The time spent by both parties on the matter is comparable. The bulk of the parties’ submissions, however, addressed the issue of penalty.
[44] As the successful party, the LSO is entitled to its costs on a partial indemnity basis. I fix costs of the appeal in the amount of $10,000, all-inclusive, payable by the Respondent to the LSO, within 30 days of the release of these reasons.
“Nishikawa J.”
“I agree: Newton J.”
STEWART J. (DISSENTING)
[45] I have read the judgment of the majority of panel members on this appeal. Respectfully, I must disagree with the majority’s decision and the reasons for it.
[46] I agree with the factual background set out in paragraphs 4 through 15 of the majority’s reasons.
[47] However, whether the issue is described as one of jurisdiction or procedural fairness, I am of the view that unanimous decision of the five-member Appeal Division panel should not be interfered with on either basis.
[48] The issue before the Appeal Division was framed by the LSO as being primarily one of lack of jurisdiction of the hearing panel due to the fact that there was no lay adjudicator on it. This issue had not been raised by the LSO by way of any objection prior to or at the hearing before the hearing panel, but was sought to be raised for the first time on appeal to the Appeal Division. The Appeal Division rejected the LSO’s arguments to justify their raising of the issue for the first time on appeal.
[49] The Appeal Division (at paras. 11-18) determined the issues as follows:
[11] Although reluctant to allow new issues to be raised on appeal, an appellate body may consider issues not raised below if three conditions are met:
• there is a sufficient evidentiary record to resolve the issue;
• the failure to raise the issue at the hearing was not a tactical one; and
• the refusal to raise the new issue on appeal would not result in a miscarriage of justice.
[12] We are not persuaded that the appellant meets this threshold. There is no evidentiary record to resolve the issue and no motion to allow fresh evidence.
[13] There is no evidence explaining why the issue was not raised before the hearing panel. There is no record available upon which the panel might determine whether there was some impropriety in excluding a lay adjudicator from this panel, and no evidence on which we might conclude whether the discretion was properly or improperly exercised. Further, there is no basis on which to conclude that the refusal will result in a miscarriage of justice.
[14] Although we need not do so, we note that the Law Society’s submission, that the absence of a lay adjudicator nullified the panel’s jurisdiction to hear this matter or was otherwise procedurally unfair, fails as well.
[15] The Law Society submission that the Chair or Vice-Chair’s discretion in composing panels does not extend to the requirement that every panel include a lay adjudicator is not justified on a plain reading of O. Reg. 167/07, s. 1(4).
[16] Its submission that the Chair had an obligation to notify the parties that he had exercised his jurisdiction is without foundation. The regulations do not require that the Chair or Vice-Chair record or document the basis for their exercise of discretion or notify the parties. The agenda naming the adjudicators is published in the week prior to the hearing. The biographies of the adjudicators are published on the Tribunal website. The biographies can easily be checked by parties who wish to consider, or take issue with, the composition of a panel. We conclude that the parties had ample notice as to the make up of the panel.
[17] There is no dispute that lay adjudicators are ordinarily required on every hearing panel and are an integral and valuable part of the hearing process. Their participation in hearings is part and parcel of the public interest mandate of the Law Society. Nonetheless, the Chair or Vice-Chair may dispense with their participation in his or her discretion. We have no basis on which to conclude that there was reversible error in exercise of that discretion.
[18] In any event, objections to the composition of the hearing panel should be brought as soon as possible in order to avoid potentially tactical claims after a result is known and to ensure that hearings and appeals are avoided where the composition of a panel is improper. There is no evidence before us explaining why there was no timely objection. We would, in any event, not allow the appeal on this ground for this reason.
[50] There is nothing in the legislation that decrees that in all cases without exception a hearing panel must include a lay adjudicator. Indeed, the legislation specifically provides that such inclusion on a hearing panel may be dispensed with by the Chair in a variety of circumstances. No requirement to provide reasons is imposed upon the Chair for the exercise of such discretion, nor would it be necessary for the hearing panel to question its own composition in this case and invite submissions from the parties on the issue.
[51] As noted by the Appeal Division in its reasons for decision, the identity of the members comprising the hearing panel was made known to the parties and their counsel in advance of the hearing. No objection was made or concern was raised by the LSO before or at the commencement of the hearing or, indeed, at any time during the hearing of evidence or the making of submissions.
[52] I therefore agree with the Appeal Division’s determination that the evidentiary record before it was insufficient to permit the issue to be raised by the LSO for the first time on appeal.
[53] I am also of the view that the Appeal Division’s approach to the determination of the LSO’s argument of lack of jurisdiction was correct and am in full agreement with it. There was no evidentiary record before it to demonstrate that the considerable discretion afforded to the Chair to manage the composition of hearing panels as provided for in the legislation had not been followed or that the discretion bestowed by it on the Chair had been improperly exercised.
[54] I also note in passing that no effort to fill that gap in the evidentiary record was made by the LSO on its appeal, nor was any motion made to supplement the record before this Court. Accordingly, we are left with the same evidentiary record as was before the Appeal Division.
[55] Further, I consider that such evidence would be within the ability of the LSO to have obtained and provided to the Appeal Division, if such evidence to support its argument exists. If there is any impediment faced by the LSO in obtaining evidence as to how the composition of the panel was determined, the existence of such impediment could have been proffered to explain the absence of such evidence. In any event, it should not be the Respondent’s obligation to explain how the panel was composed as it was, or to prove through the evidence of LSO administrators, LSO internal documentation, or otherwise that the Chair properly complied with the legislation in managing the composition of this hearing panel.
[56] In its factum the LSO attempts to limit the available inferences from the evidence to two: (a) the composition of the hearing panel was the result of an oversight, or (b) it was the intentional act of the Chair but the parties were not alerted to it and were thereby deliberately deprived of the opportunity to address the matter. With respect to the first inference, there is no evidence from anyone with knowledge of how this hearing panel was struck to conclude there was any oversight or error. With respect to the second postulated inference, not only is there no evidence of any intention by the Chair to deprive the parties of any opportunity to raise the matter, all parties were advised of the composition of the hearing panel in advance of the hearing and made no objection. Moreover, there is no evidence from the LSO or its counsel at the hearing that they were unaware or misled in any way.
[57] Further, as noted by the Appeal Division, there is no obligation in the legislation that would require the Chair to provide reasons to the parties for the exercise of his discretion in the composition of the hearing panel. Even if the LSO were to make the argument on actual admissible evidence that the discretion was improperly exercised by the Chair, such exercise would generally be a matter which would attract great deference and one with which this Court would be reluctant to interfere. This deference and reluctance to interfere must be particularly acute in a case such as this in which the LSO has provided no evidence as to how the composition came about, nor any evidence of impropriety or error.
[58] In my opinion, in the absence of any evidence of actual error or oversight or improper exercise of discretion there is at least one other, more reasonable, inference to be drawn from the available evidence: the Chair’s discretion was exercised in compliance with the legislation and the hearing panel acted with authority and within its jurisdiction. The LSO has failed to point to or adduce any evidence that would serve to dispel that inference.
[59] To the extent that the issue was framed as a matter of procedural fairness, I likewise respectfully disagree with the majority opinion. The Respondent has now been put through two lengthy proceedings at two levels of adjudication at the behest of the LSO as a result of which, as is apparent, it did not achieve the disbarment of the Respondent it sought. The argument advanced at the appeal stage was one that the Appeal Division was not prepared to countenance. It was correct in doing so.
[60] As was noted by the Appeal Division, the composition of the panel was made known to the LSO both before and at the hearing but no objection was taken by it at that time. There was no procedural unfairness in the composition of the hearing panel or the process it employed to hear and decide the issues before it. In my opinion, it is manifestly unfair to the Respondent to permit the challenge to the composition of the panel on appeal, whether under the heading of lack of jurisdiction or procedural unfairness, in these circumstances. To order a further hearing on either basis as is urged by the LSO would not be in the interests of justice.
[61] I therefore would not give effect to this ground of appeal.
“Stewart J.”
Released: July 4, 2023
CITATION: Law Society of Ontario v. Schulz, 2023 ONSC 3943
DIVISIONAL COURT FILE NO.: 509/22
DATE: 20230704
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Newton and Nishikawa JJ.
BETWEEN:
Law Society of Ontario
Appellant
– and –
Martin Christopher Schulz
Respondent
REASONS FOR DECISION
Nishikawa J. (Newton J. concurring)
Stewart J. (dissenting)
Released: July 4, 2023
[^1]: Law Society of Upper Canada v. Aguirre, 2007 ONLSHP 46.
[^2]: This ground is not a basis for not assigning a lay adjudicator to a hearing panel.
[^3]: In fact, at the hearing, the panel noted that certain bencher adjudicators who had recently joined the Tribunal were in attendance to observe the proceeding. It is unclear why the panel would alert the parties to this fact and not to the composition of the panel, especially if the discretion to appoint an all-lawyer panel had been exercised.