Court File and Parties
CITATION: Mazo v. Law Society of Ontario, 2024 ONSC 6373
DIVISIONAL COURT FILE NO.: 585/24 DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ALISA MAZO
Scott Hutchison and Sarina Nezhadian, for the Moving Party
Moving Party
– and –
LAW SOCIETY OF ONTARIO
Joshua Elcombe, for the Respondent
Respondent
HEARD at Toronto: November 5, 2024 (by videoconference)
REASONS FOR DECISION
FL Myers J. (Orally):
[1] Ms. Mazo asks me to stay the Law Society Tribunal hearing scheduled to commence on November 18, 2024 for three weeks. The hearing involves allegations regarding Ms. Mazo’s conduct in 2017 to 2018 involving some four million dollars that TD bank claimed Ms. Mazo wrongfully obtained from it.
[2] Ms. Mazo has subsequently re-paid the allegedly purloined money.
[3] Ms. Mazo seeks to stay the professional misconduct charges brought by the Law Society in 2023, after its investigation of Ms. Mazo’s affairs.
[4] Ms. Mazo moved to stay the professional misconduct charges in front of the Law Society Tribunal on the basis that the charges were an abuse of process. Ms. Mazo says the Law Society’s investigator obtained documents from TD bank inappropriately, in breach of the TD bank’s obligations of confidentiality to her as a client.
[5] The Tribunal heard the motion and dismissed it. It found generally that the investigator was entitled to request documents from the complainant TD pursuant to its investigative authority. But at one point, TD bank hesitated and sought written authorization or requirement for it to disclose Ms. Mazo’s documents. The Law Society’s investigator responded by claiming that a subsection of PIPEDA applied to require disclosure or to free TD bank of its obligation of confidentiality.
[6] The Law Society Tribunal found that this advice was not correct. It criticized the investigator and the Law Society but held that the misconduct was not so serious as to amount to an “exceptional circumstance” required to establish that the continuation of the proceedings would bring the administration of justice into disrepute or to amount to an abuse of process.
[7] The Tribunal found no bad faith by the investigator. It also held that Ms. Mazo was free to seek to exclude the documents obtained by the wrongful reference to PIPEDA if the Law Society proffers them in evidence at the hearing.
[8] Ms. Mazo seeks judicial review of the dismissal of her motion. She asks the court to stay the upcoming hearing to avoid irreparable harm to her. If the Law Society proceeding is held to be an abuse of process on a judicial review application, then she submits that letting the hearing proceed in the interim will subject her to the very process that would be found to bring the administration of justice into disrepute.
[9] The parties agree that the three-part RJR-McDonald test applies to this motion. Ms. Mazo submits that there are serious issues that the Tribunal erred in its test of bad faith and in understanding the serious wrongdoing inflicted on Ms. Mazo by the Law Society’s investigator. She also claims that the Tribunal’s holding is a slippery slope to allowing the Law Society to obtain privileged documents.
[10] Justice Davies previously refused to dismiss the application for judicial review under rule 2.1 of the Rules of Civil Procedure. She also extended the time for the application to be brought under section 5(2) of the Judicial Review Procedure Act. Both findings could infer that Justice Davies found the proceeding to be not frivolous. But I am not prepared to say that I am bound or that the doctrine of res judicata could apply to either holding as each finding is explicable otherwise. Rule 2.1 for example, applies only in the clearest of cases where a motion for dismissal would itself be abusive. This is not one of those clear cases of abuse.
[11] Secondly, while a finding under section 5(2) does involve the weighing of the merits of the claim against the prejudice by delay, the delay in this case was three business days. There is no real merit required to overcome three days of non-existent prejudice.
[12] In any event, I am not going to rule on the merits of the applicant’s proposed arguments for judicial review because I do not need to do so in view of the view that I take on the matter.
[13] The other aspect of the serious issue to be heard in this application, involves the question of prematurity. Justice Davies left this issue open in her Rule 2.1 and extension findings. In David v. Law Society of Ontario, 2021 ONSC 4606 at paragraph 14, the Divisional Court held as follows,
It is well established that, absent exceptional circumstances, the court will not interfere with an administrative process until it has run its course. To do otherwise would unnecessarily fragment the proceedings and cause delay: Landry v. Law Society of Upper Canada, 2011 99902 (Div. Ct.), at paras. 15-19. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para.33, exceptional circumstances are very narrow and do not even include “[c]oncerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts … as long as that process allows the issues to be raised and an effective remedy to be granted.
[14] In paragraph 16 of that decision, the court found that a claim of an abuse of process did not constitute exceptional circumstances. Mr. Hutchison submits that this abuse of process is different because it is brought under the residual or second head of the abuse of process doctrine whereby the court could find that the hearing itself could bring the administration of justice into disrepute. On that basis, we need to stop the hearing in order to prevent the very harm that the doctrine of abuse of process is designed to denounce and prevent.
[15] But, in my view, a lot of things can happen.
[16] The Law Society may not seek to introduce the disputed documents into evidence. The Law Society Tribunal could exclude them and draw an adverse credibility finding against the investigator. Ms. Mazo could win the proceeding and have all charges dismissed against her. Any of those findings could make this proposed judicial review proceeding moot. In other words, there are lots of possible outcomes irrespective of the alleged abuse of process.
[17] Fragmentation of the proceeding causes delay and extra costs. It’s inefficient and therefore generally not allowed unless absolutely necessary to avoid special circumstances or harm. In precedents like David, allegations of abuse of process were found not be a basis for a stay. Harm might occur or it might not.
[18] If the proceeding goes ahead, and ultimately the court finds that an abuse of process occurred, there can still be public denunciation and punitive costs awarded to compensate Ms. Mazo.
[19] In light of the clear findings though of Justice Schabas for the panel in Kahissay v. Insurance, 2023 ONSC 3650 at paragraph 9, I cannot find that an abuse of process can be a basis for interlocutory fragmentation of an administrative proceeding. In my view, this proceeding has no realistic chances of success on the merits because it is premature.
[20] In addition, the balance of convenience favours proceeding with the Law Society Tribunal hearing. The Law Society has been very slow in its investigation. It is true that Ms. Mazo failed to produce documents as she was required. But there was no reason for the Law Society to wait three years before making her perform her statutory obligation.
[21] But a risk of regulatory failure by delay is not fixed by adding further delay to the proceeding. The hearing at the Law Society Tribunal was set ten months ago on a peremptory basis to all parties. Even if I expedite the judicial review, it will be many months or even years before all the parties involved get back before the Tribunal for a three-week hearing.
[22] Given that the alleged abuse of process arguments will still be available to Ms. Mazo at the Law Society Tribunal and before the court in any ultimate appeal of the Law Society decision (after an intermediate appeal to the Law Society Appeal Tribunal of course), the balance of convenience favours getting the hearing done so that all necessary findings of fact and law on all issues will be available to the Appeal Tribunal and the court if necessary.
[23] The motion is therefore dismissed. The parties agreed that the costs of the motion will be reserved to the hearing panel.
FL Myers J.
Oral Reasons Released: November 5, 2024
Written Endorsement Released: November 19, 2024
CITATION: Mazo v. Law Society of Ontario, 2024 ONSC 6373
DIVISIONAL COURT FILE NO.: 585/24 DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ALISA MAZO
Moving Party
– and –
LAW SOCIETY OF ONTARIO
Respondent
ORAL REASONS FOR DECISION
FL MYERS J.
Oral Reasons Released: November 5, 2024
Written Endorsement Released: November 19, 2024