CITATION: Rappaport v. Law Society of Ontario, 2025 ONSC 431

DIVISIONAL COURT FILE NO.: 481/24

DATE: 20250123

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Michael Israel Rappaport, Appellant

AND:

Law Society of Ontario, Respondent

BEFORE: Lococo, Matheson and O’Brien JJ.

COUNSEL: Michael Rappaport, Self-Represented

Elaine Strosberg, for the Law Society of Ontario

HEARD at Toronto: January 13, 2025

ENDORSEMENT

[1] Mr. Rappaport appeals from a decision of the Law Society Tribunal Appeal Division dated July 25, 2024 (2024 ONLSTA 13). The Appeal Division dismissed his appeal from decisions of the Tribunal’s Hearing Division dated April 24, 2023 (2023 ONLSTH 57) and September 11, 2023 (20023 ONLSTH 118) and awarded costs against him of $8,610.

[2] The Hearing Division found the appellant to have committed professional misconduct in relation to (1) representing a client in a family law matter; and (2) publicizing material related to a complaint against Macleod J. (now Regional Senior Justice MacLeod) to the Canadian Judicial Council (CJC) arising from the family law proceeding. The Hearing Division found the appellant’s client was vulnerable and unsophisticated. The client ultimately was left with nothing.

[3] The Hearing Division concluded the appellant failed to meet the standard of a competent lawyer in the following ways:

(1) he brought a summary judgment motion that was untenable and incapable of success;

(2) he delayed in advising the client of a potential conflict of interest between them;

(3) he posted personal client information on a website he created to serve his own interest relating to the CJC complaint; and

(4) he twice filed affidavit evidence detailing conversations between himself and his client that implicitly waived solicitor-client privilege and made him a potential witness, which resulted in his removal from the record.

[4] The Hearing Division also concluded the appellant failed to encourage respect for the administration of justice by filing an affidavit that contained personal attacks on McLeod J., and by maintaining the website devoted to the CJC complaint online until about seven months after the CJC notified the appellant that it had declined to investigate the complaint.

[5] Finally, The Hearing Division found the appellant submitted his own evidence before the court by way of an affidavit sworn by another lawyer recounting the appellant’s information, when he was not permitted to do so by the Rules of Professional Conduct.

[6] At the penalty phase, the Hearing Division ordered that the appellant’s licence to practise be suspended for five months and that the appellant pay costs of $55,000.

[7] The appellant raised multiple grounds of appeal at the Appeal Division. He submitted that the penalty imposed by the Hearing Division violated his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.[^1] He further submitted that the Law Society treated the complaint against him unequally and in violation of s. 15 of the Charter, as demonstrated by the priority given to the complaint against him compared to other more serious complaints filed by clients against counsel. He submitted the Hearing Division erred in not ordering a mistrial and made errors of fact and/or law in finding that he engaged in professional misconduct. Finally, he submitted the Hearing Division erred in imposing a five-month suspension and $55,000 in costs without taking into account important considerations, such as mitigating factors, the objectives of imposing a penalty, and the Law Society’s alleged bad faith conduct.

[8] In comprehensive reasons, the Appeal Division dismissed the appellant’s submissions and upheld the decisions of the Hearing Division on the merits and on penalty and costs. The appellant now repeats most of the same submissions he made before the Appeal Division in this court, broadly alleging that the Appeal Division failed to intervene in what he considers to be the errors of the Hearing Division. We dismiss the appeal on the issues already raised before the Appeal Division substantially for the reasons given by the Appeal Division. We add the following to the Appeal Division’s reasons on those issues and to address new issues raised in this court.

Section 2(b) Charter Rights

[9] The appellant submitted before the Appeal Division that the Hearing Division violated his freedom of expression under s. 2(b) of the Charter by sanctioning him for adducing an affidavit that contained attacks on a judge and maintaining the website that supported the CJC complaint after the complaint had been dismissed.

[10] The Appeal Division agreed that the appellant’s s. 2(b) rights were engaged by the Law Society’s disciplinary actions but rejected the submission that they were unjustifiably infringed.

[11] In this court, the appellant submits the Appeal Division erred by failing to perform the analysis required by the Supreme Court of Canada in Groia v Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772. He points to para. 120 of Groia to say the Appeal Division was required to conduct a review of his affidavit (which appended the complaint to the CJC) to determine whether the allegations were made in good faith and based upon reasonable factual and legal foundations.

[12] We disagree with the submission that the Appeal Division failed to apply Groia correctly. According to Groia, a professional misconduct finding that engages a lawyer’s expressive freedom under s. 2(b) of the Charter will only be reasonable if it reflects a proportionate balancing of the law society’s statutory objective with the lawyer’s expressive freedom. At para. 120, Groia states that “sanctioning a lawyer for good faith, reasonably based allegations that are grounded in legal error does not reflect a proportionate balancing.”

[13] The Appeal Division engaged in the very balancing Groia requires. It squarely acknowledged the importance of the appellant’s s. 2(b) rights, stating, for example at para. 32 of its reasons:

Lawyers play a critical role in the administration of justice. It is imperative that they be able to speak freely about the justice system and its failings in order to hold all justice participants – including judges – accountable.

[14] The Appeal Division also stated that a lawyer does not fail to encourage respect for the administration of justice merely by speaking out against the conduct of justice system participants. However, it emphasized at para. 33: “The question is how they choose to do so.”

[15] In this respect, the Appeal Division stated that limitations on a lawyer’s right to speak freely about justice system participants will be reasonable insofar as it advances the underlying objectives of transparency and accountability in the justice system.

[16] The Appeal Division noted the Law Society’s statutory mandate includes regulating the professional conduct of lawyers, including by enforcing the Rules of Professional Conduct. It went on to say that criticism of justice system participants that is, as stated in commentary to Rule 5-6-1, “petty, intemperate, or unsupported by a bona fide belief in its real merit” undermines rather than promotes the goals of transparency and accountability. It stated this type of expression lies far from the core values that underpin lawyers’ expressive rights.

[17] The Appeal Division concluded that the Hearing Division’s basis for finding professional misconduct reflected a proportionate balancing of the appellant’s Charter rights with the Law Society’s statutory mandate.

[18] The first ground for finding professional misconduct was the appellant’s accusations against MacLeod J. on a costs motion. By way of background, the appellant filed a motion in the family law proceeding, returnable before MacLeod J., seeking exclusive possession and sale of the matrimonial home among other relief. MacLeod J. denied the requested relief. He found that the motion was ill-founded and could never have been successful as framed. He also raised whether the appellant should be personally liable for costs and adjourned that question to a separate motion.

[19] The costs motion was heard before Aston J. The appellant filed an affidavit of another lawyer that contained the appellant’s views of the case and why he felt MacLeod J. was biased and wrong in his decision. The affidavit appended the appellant’s complaint against MacLeod J. to the CJC, which included multiple allegations that McLeod J. was biased, had failed to uphold standards of integrity, had poor ethics and competency, lacked knowledge of family law, and abused his position of authority. Aston J. refused to admit the affidavit, relying on the rule that prevents a lawyer from being both a witness and an advocate. He ruled that the content of the affidavit was “scandalous.”

[20] The Hearing Division found the appellant’s conduct in making accusations against MacLeod J. that bore no connection to the issues in dispute on the motion and were focused on the lawyer’s and not the judge’s behaviour to constitute professional misconduct.

[21] The Hearing Division’s second concern with the appellant’s expressive activity related to the website he created about his CJC complaint. The website posted documents from the family law proceedings, including the parties’ prenuptial agreement and financial statements. The Hearing Division concluded it constituted professional misconduct to maintain the website for over a year, including after the CJC notified him that it would be declining to investigate the complaint. The website landing page contained inflammatory statements against MacLeod J.

[22] The Appeal Division concluded that in the circumstances, the finding of professional misconduct reflected a reasonable balancing. It described the appellant’s expressive activity as “gratuitous,” taking into account the manner in which it was made and that it was irrelevant in the forum in which it was expressed.

[23] It was far from the core values of s. 2(b) to raise inflammatory allegations in court against a judge that were irrelevant to the issue before the court. Similarly, maintaining a website about a complaint with strongly-worded criticisms against a judge long after the CJC summarily dismissed the complaint is accurately described as gratuitous and did not promote the central values sought to be protected by s. 2(b). Overall, considering the context and content of the appellant’s allegations, it was implicit in the Appeal Division’s reasons that the appellant’s gratuitous expression did not constitute good faith, reasonably based allegations. There is no basis to interfere with the Appeal Division’s conclusions on this issue.

[24] During the Law Society’s submissions in this court, there was some discussion of whether it was necessary to apply the specific test in Groia for evaluating whether a lawyer’s in-court behaviour constitutes misconduct. That test arose in very different factual circumstances and was not relied on by the appellant. We therefore do not need to determine whether a modified version of that test could apply to the circumstances of this case.

Section 15 Charter Rights

[25] Before the Appeal Division and again in this court, the appellant submitted that the Law Society violated his s. 15(1) Charter rights by prioritizing the complaints filed against him over more serious complaints filed against lawyers each year by clients who suffered “actual damages.” The Appeal Division dismissed this argument, noting that the appellant adduced no evidence in support of his s. 15(1) allegations. In addition, the Appeal Division stated the appellant’s submission was tantamount to arguing the Law Society committed an abuse of process through selective prosecution. It concluded the appellant did not meet the high threshold for abuse of process in this case.

[26] It remains the case that the appellant has not put forward evidence to support this ground of appeal. Further, the appellant did not identify any basis on which his allegations, even if substantiated by evidence, could fall within s. 15(1) of the Charter, including how the alleged discrimination against him was based on an enumerated or analogous ground. This ground of appeal is dismissed.

Adducing Own Evidence on Motion to Apportion Costs

[27] The appellant submits that, contrary to the Appeal Division’s decision, he was permitted to adduce his own evidence at the costs motion. This is because in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478, McLachlin C.J. stated that, on such a motion, the lawyer should have the opportunity to “adduce any relevant evidence” on such a motion.

[28] The statement from Jodoin confirms a lawyer is permitted to file relevant evidence to defend him or herself on the motion. It does not grant the lawyer permission to adduce evidence in a manner that violates Rules of Professional Conduct. This ground of appeal is dismissed.

Sufficiency of Reasons

[29] The appellant submits the Appeal Division failed to address his submissions on penalty and costs and instead “copied a paragraph” from the Hearing Division’s penalty and costs decision.

[30] The Court of Appeal has said appellate courts must apply “a functional test to determine whether the reasons provide an intelligible basis for understanding the trial judge’s verdict”: R. v. Ramgadoo, 2024 ONCA 740, at para. 9. The Appeal Division’s reasons easily meet the test for sufficiency of reasons.

[31] The Hearing Division’s reasons on penalty considered the factors in Law Society of Upper Canada v. Aguirre, 2007 ONLSHP 46 and other relevant case law in a detailed manner over several pages. The Appeal Division specifically referenced the conclusions on the Aguirre factors and found no basis to interfere in the Hearing Division’s conclusions on penalty. It addressed the appellant’s arguments in a concise fashion, but one that readily permits appellate review. This ground of appeal is dismissed.

Disposition

[32] The appeal is dismissed. The Law Society is entitled to its costs in the amount of $4,060 all-inclusive.

______________________________ Lococo J.

Matheson J.

O’Brien J.

Date: January 23, 2025

[^1]: Canadian Charter of Rights and Freedoms,1982, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.