COURT FILE NO.: CV-11-437807

DATE: 20120711

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Harry Kopyto, Plaintiff

AND

The Law Society of Upper Canada, Defendant

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Harry Kopyto in person

Helen Daley and Simon Bieber, Counsel for the Defendant

HEARD: July 4, 2012

ENDORSEMENT

[ 1 ] This is a motion brought by the Defendant to strike the Statement of Claim without leave to amend pursuant to Rule 21.01(1) (b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Although the notice of motion also requests the same order pursuant to Rule 25, Ms. Daley advised at the outset that she was not proceeding with that relief, which motion could have been brought before a Master.

[ 2 ] Given that the motion was brought pursuant to Rule 21, there was no evidence filed. Both parties delivered facta and Briefs of Authorities.

Background

[ 3 ] The Plaintiff is a paralegal who seeks to be grandparented as a paralegal in the Province of Ontario. The Law Society of Upper Canada [“LSUC”] has jurisdiction pursuant to the Law Society Act, R.S.O. 1990, c. L.8 [“LSA”] to hold a good character hearing in order to determine whether or not an applicant ought to be licensed as a paralegal in Ontario. The LSUC initiated a good character hearing with respect to the Plaintiff’s application.

[ 4 ] The Plaintiff brought a motion to stay the hearing on the basis that the regulatory regime was unconstitutional. The LSUC launched a motion to quash the Plaintiff’s motion. The Hearing Panel granted the LSUC motion to quash and it stated that the Panel was not competent to hear constitutional challenges, which are more appropriately raised before a Court.

[ 5 ] The Plaintiff sought judicial review of this decision before the Divisional Court. In dismissing the Plaintiff’s application on October 11, 2011, Justice Swinton agreed the Hearing Panel did not have jurisdiction to deal with the validity of the By-law.

[ 6 ] The Plaintiff then issued a Statement of Claim in the Superior Court of Justice on October 24, 2011 claiming five declarations: that By-law 4 of the LSA constituted an “anti-competitive act” as defined in the Competition Act, R.S.C., 1985, c. C-34 ; that the LSUC had abused its position by restricting access to justice due to its assumption of regulatory jurisdiction over paralegals; that the LSUC acted in bad faith and was in a conflict of interest by dealing with the paralegal profession; that By-law 4 was not in the public interest because it restricted paralegals’ practice, contrary to the enabling statute; and that By-law 4 violated the constitutional right of access to affordable justice.

[ 7 ] It is this Statement of Claim that the Defendant seeks to strike on this motion.

Positions of the Parties

The Defendant

[ 8 ] The LSUC argues that the Statement of Claim discloses no reasonable cause of action because the various declarations sought relating to By-law 4 are not available at law. Paragraph 1(a) and (b) which states that the LSA infringes the provisions of the Competition Act , cannot stand because the Supreme Court of Canada has determined that the federal legislation does not apply to LSUC in its role as a regulator.

[ 9 ] Paragraph 1 (c) and (d) cannot stand, it is argued, because the jurisprudence is clear that if a Board is acting within its statutory mandate, it is deemed to be acting in the public interest. Because the provincial Legislature has seen fit to confer on the LSUC the mandate to regulate paralegals, by acting in accordance with this mandate, there is a presumption that it is acting in the public interest and it is not the Court’s function to determine whether or not the legislation is proper or whether it ought to be changed. By acting in accordance with its mandate, the LSUC cannot be said to be acting in bad faith.

[ 10 ] Finally, with respect to the allegation that the regulatory process being followed by the LSUC violates the constitutional right of access to affordable justice, the LSUC submits that the Supreme Court of Canada has made it clear that there is no general right for everyone in the country to have access to legal services.

The Plaintiff

[ 11 ] Much of Mr. Kopyto’s argument addressed the issue of whether or not there were adequate facts in the Statement of Claim to support the declaratory relief sought and to enable the Defendant to plead to it. As I indicated earlier in these reasons, the Defendant did not pursue the argument based on Rule 25. Mr. Kopyto placed a great deal of reliance on the Vilardell v. Dunham [i] decision of the British Columbia Supreme Court which he submitted stood for the proposition that there is a fundamental right to access to justice and if legislation is enacted which infringes on this right, it will be declared invalid.

[ 12 ] The Plaintiff submitted that by enacting legislation permitting the LSUC to regulate both lawyers and paralegals, this limits competition which contravenes the Competition Act . Further, it restricts access to justice, which is a fundamental premise of the constitutional arrangement of Canada and is contrary to the public interest.

[ 13 ] Mr. Kopyto argued that the declarations requested do not ask the Court to assume the Legislature’s function; but rather, to scrutinize a portion of the legislation and determine if it is inconsistent with the enabling statute. The LSA is not immune to judicial challenge and there are numerous cases which support this statement. Finally, he submitted that the LSUC by regulating the paralegal profession infringes the fundamental right to affordable justice, which is a constitutional right in Canada. Mr. Kopyto argued that to accept the submissions of the LSUC is to accept that the Courts are powerless even if legislation and the actions of a body enacted pursuant to the legislation violate constitutional rights and this cannot be so.

[ 14 ] In his submissions, Mr. Kopyto made general, sweeping submissions centered around infringement of constitutional rights, access to justice and the public interest and he failed to deal with the specific arguments advanced by the counsel for the Defendant related to the pleadings.

Analysis

Paragraphs 1(a) and (b):

[ 15 ] These paragraphs ask that the actions of the LSUC be deemed in contravention of provisions contained in the federal Competition Act .

[ 16 ] It is clear that the power to deal with the regulation of lawyers and paralegals was validly granted by the Legislature to the LSUC. Thus, I cannot accede to Mr. Kopyto’s argument that by doing what it was mandated to do, the LSUC is somehow acting against the interests of the public. Rather, in my view, the LSUC is acting in accordance with authority specifically granted to it by the legislation which is said to be in the public interest.

[ 17 ] Furthermore, I agree with the submission of counsel for the LSUC that the Competition Act does not apply to the LSUC when it acts as a regulator. This issue was considered by my colleague Justice Beth Allen in Satchko v. Ontario [ii] where she stated,

I find it is “plain and obvious” those pleadings will fail because that legislation does not apply to the regulatory actions of a provincial government and provides for criminal sanctions for non-compliance, not civil damages…

She went on to strike the paragraphs in the Amended Claim that pleaded damages on the basis of a breach of the Competition Act .

[ 18 ] By regulating the actions of paralegals pursuant to the LSA , the actions of the LSUC are outside of the purview of the Competition Act and consequently, the claims contained in paragraphs 1(a) and (b) cannot succeed.

Paragraph 1(c) and (d):

[ 19 ] These paragraphs allege that the LSUC has acted in bad faith by regulating the paralegals and that their actions, which restrict the scope of practice, are not in the public interest.

[ 20 ] It is beyond dispute that the Legislature of Ontario has conferred on the LSUC the authority to determine how licenses for paralegals will be granted and who gets the right to practise as a paralegal. This was a decision of the Legislature; it is not the case that the LSUC has given itself the authority to deal with regulation of the profession. In Canada v. Law Society of British Columbia [iii] the Court noted,

The courts in these cases have said in various ways that compliance with the edicts of a validly enacted provincial measure can hardly amount to something contrary to the public interest.

[ 21 ] This view was again expressed in Industrial Milk Producers Assn. v. British Columbia (Milk Board) [iv] when Justice Reed stated,

…the established jurisprudence, in my view, deems actions taken pursuant to federal or provincial regulating authorities to be in the public interest. Thus whether or not the legislation specifically requires the Milk Board or the Canadian Dairy commission to act in the public interest is not a relevant consideration…

[ 22 ] The LSUC is acting in accordance with the powers conferred upon it to regulate the paralegal profession so, in my view, it is not the function of this Court to determine if the legislation is proper or whether or not it is achieving its intended means. Mr. Kopyto may not agree with the authority given to the LSUC to deal with paralegals and their licensing, but he cannot argue, as he attempts to do, that to permit this to continue is not in the public interest.

[ 23 ] Thus, the claims in paragraph 1(c) and (d) disclose no valid cause of action and cannot stand.

Paragraph 1(e):

[ 24 ] This paragraph claims that By-law 4 granting the LSUC the discretion to deal with regulation of paralegals violates the constitutional right of access to affordable justice. There is no reference in the Statement of Claim to what section of the Charter is allegedly infringed by the By-law or the actions of the Defendant.

[ 25 ] The Supreme Court of Canada considered this issue when it had to determine whether a tax infringed the right of low income persons to access to justice in British Columbia (Attorney General) v. Christie [v] . In finding there was no constitutional right to access to legal services, the Court noted,

It is clear from a review of these principles that general access to legal services is not a currently recognized aspect of the rule of law. However, in Imperial Tobacco , this court left open the possibility that the rule of law may include additional principles. It is therefore necessary to determine whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law….The issue, however, is whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law. In our view, it is not. Access to legal services is fundamentally important in any free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.

[ 26 ] While Mr. Kopyto urged me to adopt the reasoning in Vilardell v. Dunham, supra, I decline to do so for several reasons. First, that decision is of the British Columbia Supreme Court and a Notice of Appeal has been filed in the British Columbia Court of Appeal. More importantly, however, that decision concerned an application by a Plaintiff for an order relieving her from mandatory court fees following a family law trial on the basis of her economic situation. The application was put over until the trial was completed and the Plaintiff sought a declaration that the fees breached her constitutional rights and the Charter . Various intervenors participated in the application and the presiding judge found that the hearing fees were unconstitutional and thus, the Plaintiff did not have to pay them. That is very different than the motion that is before me, which is brought pursuant to a Rule which precludes the use of evidence on the motion and in which the moving party must prove on the basis of pleadings that there is no possibility of success in law.

[ 27 ] I do not agree that the reasoning in Vilardell, supra , stands for the broad proposition that there is a constitutional right to access to justice; to accept this argument flies in the face of the reasoning set out in B.C. v. Christie, supra . In my view, paragraph 1(e) of the Statement of Claim does not set out any basis for the declaration that is sought and therefore the claim cannot succeed.

Conclusion

[ 28 ] The various declarations sought fail to disclose any legal basis for the relief requested. The balance of the Statement of Claim makes reference to the proceedings brought before the Hearing Panel, which is of no assistance to the Plaintiff in the circumstances. This is not a case where certain of the paragraphs in a pleading do not comply with the requirements for pleadings; the claim in its entirety fails to disclose a cause of action. The motion brought by the Defendant is granted and the Statement of Claim is struck without leave to amend.

[ 29 ] Counsel for the Defendant requests costs and, in my view, costs ought to follow the event. The Defendant was successful and, therefore, is entitled to its costs, which I fix on a partial indemnity basis in the sum of $8,500.00 payable by the Plaintiff to the Defendant forthwith.

D.A. Wilson J.

Date: 20120711

[i] Vilardell v. Dunham, 2012 BCSC 748

[ii] Satchko v. Ontario, 2007 CarswellOnt 8086

[iii] Canada (Attorney General) v. Law Society of British Columbia 1982 , [1982] 2 S.C.R. 307

[iv] Industrial Milk Producers Assn. v. British Columbia (Milk Board), 1988 , 47 D.L.R.(4 th ) 710

[v] British Columbia (Attorney General) v. Christie 2007 SCC 21 , [2007] 1 S.C.R. 873