Court File and Parties

CITATION: Law Society of Ontario v. A.A., 2024 ONSC 3440 DIVISIONAL COURT FILE NO.: 204/24 DATE: 20240614

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Law Society of Ontario, Applicant AND: A.A., Respondent AND: Justice for Children and Youth, Moving Party/Proposed Intervener

BEFORE: Davies J.

COUNSEL: Amanda Pinto and Andrea Luey, for the Applicant/Moving Party James Melnick, for the Respondent Cynthia Pay, for the Law Society Tribunal Mary Birdsell and Samira Ahmed, for the Moving Party/Proposed Intervener

HEARD: In writing

Endorsement

MOTION BY JUSTICE FOR CHILDREN AND YOUTH FOR LEAVE TO INTERVENE

[1] In 2019, AA applied to be licensed as a lawyer by the Law Society of Ontario. The Law Society launched an investigation into AA’s good character because it had evidence that AA sexually abused several children in 2009.

[2] On July 25, 2023 the Law Society Tribunal found that AA is of good character but imposed a condition on his licence: he is not permitted to meet alone with minor children.

[3] The Law Society appealed the Tribunal’s decision and on March 15, 2024, the Appeal Division upheld the Tribunal’s decision.

[4] The Law Society has filed an application for judicial review of the Appeal Division’s decision. That application is scheduled to be heard on August 22, 2024.

[5] Justice for Children and Youth (“JFCY”) has brought a motion for leave to intervene in the judicial review application. The Law Society consents to JFCY’s motion. AA opposes JFCY’s motion.

[6] To obtain leave to intervene JFCY must demonstrate it will

a. make useful submissions on the issues before the court on the Law Society’s judicial review application that do not duplicate the submissions of the parties; and

b. respect the limits on the role of interveners: R. v. Finta, 1993 132 (SCC), [1993] 1 SCR 1138, R. v. McGregor, 2023 SCC 4.

[7] An Intervener must be able to either present a different perspective than the parties on the legal issues or address the broader implications of the Court’s decision. An Intervener must not raise new issues or supplement the record without leave of the Court. Finally, an Intervener should not take a position on the outcome of the proceedings. When considering whether to exercise my discretion to grant JFCY intervener status, I must also consider whether permitting JFCY to intervene will prejudice the parties.

[8] AA makes four arguments in opposition to JFCY’s motion. First, AA argues that JFCY has not demonstrated that it will bring a unique perspective to the case that is different than the Law Society’s position. Second, AA argues that JFCY is attempting to augment the record with social science evidence. Third, AA argues that permitting JFCY to intervene will prejudice him. Finally, AA argues that JFCY is in a conflict because JFCY has been assisting him over the past few years.

[9] I am satisfied that JFCY should be granted intervener status to make submissions about whether the condition placed on AA’s licence is consistent with the rights of children and young people.

[10] JFCY is a legal aid clinic that focusses on protecting and promoting the rights of children and young people. It has extensive experience and expertise on the rights of children and how legal systems affect children and young people. JFCY has repeatedly been granted intervener status at all levels of court in Ontario as well as the Supreme Court of Canada.

[11] I am satisfied that JFCY will bring a unique perspective to this case. One of the issues raised by the Law Society in its notice of application for judicial review is that the Appeal Division erred in upholding the Tribunal’s decision to impose a condition on AA’s licence that is “contrary to public policy, Charter values and the established principles of human rights and equality law.” JFCY proposes to address whether a condition requiring a licensee to be supervised in the presence of children is consistent with Charter values or international law. JFCY also proposes to address whether the Law Society’s duty to regulate in the public interest includes a duty to protect children and their meaningful access to justice and legal services. I am satisfied that JFCY will bring an additional perspective to this issue consistent with its expertise in the rights of children domestically and internationally. As an experienced intervener, I am satisfied JFCY will make submissions that do not duplicate the Law Society’s position.

[12] JFCY does not, however, have special expertise on the issue of whether AA is or should have been found to be of good character. That issue will be fully canvassed by the Law Society. JFCY shall not make submissions on the good character requirement under the Law Society Act and shall not take a position on the disposition of this application for judicial review.

[13] JFCY is also not permitted to adduce evidence or augment the evidentiary record. JFCY may refer to Canada’s obligations under international law and relevant Canadian jurisprudence. It may not, however, augment the record in any way, including, for example, with social science evidence.

[14] I appreciate that granting JFCY leave to intervene will increase the complexity of this case and will require AA to respond to two sets of submissions. Nonetheless, I am not satisfied the added complexity will cause AA significant prejudice. A full day has already been set aside for the application, so granting JFCY leave to intervene will not necessitate an adjournment.

[15] Finally, I reject AA’s argument that JFCY lacks impartiality or is in a conflict of interest because JFCY has been “assisting” him with his efforts to protect the identity of his children. There is no dispute that AA’s spouse, CC, was in touch with JFCY several times throughout these proceedings. I do not, however, accept AA’s submission that JFCY was assisting him.

[16] CC first contacted JFCY by email in August 2021 (more than a year before AA’s good character hearing before the Tribunal) and suggested that JFCY may be interested in AA’s case. The Executive Director of JFCY, Mary Birdsell, spoke to CC in early September 2021 and told CC that JFCY only represents children, not their parents or other adults. Ms. Birdsell told CC that while JFCY does, from time to time, intervene in matters where child rights issues arise, they were not able to participate in AA’s case. As a matter of courtesy, Ms. Birdsell offered to send CC publicly available submissions that JFCY made in another proceeding dealing with a child’s right to privacy. A clerk from JFCY sent CC those submissions on September 9, 2021, two months before AA’s first anonymization motion before the Law Society Tribunal.

[17] CC next contacted JFCY in August 2023, after the Law Society decided to appeal the Tribunal’s decision that AA is of good character. CC again asked if JFCY was interested in intervening in this matter. JFCY declined to get involved at that time.

[18] CC contacted JFCY for a third time in April of this year asking if they would consider intervening at the Divisional Court. CC sent JFCY the Law Society’s Notice of Application for Judicial Review. It was at that point that JFCY decided to seek leave to intervene.

[19] Legal clinics are required to avoid conflicts of interest: Legal Aid Services Rules, s. 92. I am not satisfied JFCY is in a conflict of interest. JFCY did not receive any confidential information from AA or CC. JFCY did not agree to represent AA or his children. JFCY did not provide legal advice to AA. Other than forwarding CC publicly available materials, JFCY did nothing to assist AA in any way, either directly or indirectly. JFCY’s decision to intervene at this stage is consistent with its mandate to advance and protect the legal rights and dignity of children and youth. The fact that JFCY learned about this case from AA’s spouse and now intends to take a position that may conflict with his interests is not a basis to find that JFCY is in a conflict of interest or lacks impartiality.

[20] JFCY is granted leave to intervene under on two issues: (a) whether a condition requiring a licensee to be supervised in the presence of children is consistent with Charter values or international law; and (b) whether the Law Society’s duty to regulate in the public interest includes a duty to protect children and their meaningful access to justice and legal services.

[21] JFCY may file a factum of no more than 10-pages double-spaced. JFCY shall not augment the record in any way. JFCY shall have 10 minutes to make oral argument subject to the discretion of the panel hearing the application.

[22] JFCY shall not seek costs on the judicial review application nor shall any costs order be made against JFCY.

[23] The parties shall comply with the following timetable for the exchange of materials:

a. The Law Society shall serve and file its application record and factum no later than June 21, 2024;

b. Justice for Children and Youth shall serve and file its factum no later than June 28, 2024;

c. AA shall serve and file his responding record (if any) and factum no later than July 19, 2024; and

d. The Law Society may serve and file a reply factum no later than July 29, 2024.

[24] All materials shall be uploaded to CaseLines as soon as they are served and filed.

[25] Justice for Children and Youth shall prepare a draft order setting out the terms and disposition of this motion and submit it to the Court within 7 days from today, together with the position of the parties on the draft order. Once the order is finalized and signed, Justice for Children and Youth shall upload a copy of the order to CaseLines along with their factum.

[26] JFCY did not seek any costs on this motion and no costs are ordered.

Davies, J.

Date: June 14, 2024