SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-15-523906
DATE: 20150819
RE: Paul V. Sweete / Applicant
AND:
The Attorney General of Ontario and The Law Society of Upper Canada / Respondents[^1]
BEFORE: Justice Edward P. Belobaba
COUNSEL:
Paul V. Sweete self-represented Applicant
Daniel Huffaker for the Attorney General of Ontario
Sean Gosnell for the Law Society of Upper Canada
HEARD: August 18, 2015
DISMISSAL OF CONSTITUTIONAL CHALLENGE
[1] Paul Sweete was injured in a motor vehicle accident in 1994. His subsequent experience with personal injury lawyers and insurers has not been pleasant. He believes very strongly that he has not been treated well or fairly by the legal system. Over the last 20 or so years, he has tried to vindicate his rights, as he sees them, and achieve some measure of justice. This particular application challenging the constitutionality of a provincial statutory provision is the latest chapter in this ongoing story.
[2] There is no doubt that Mr. Sweete has devoted an enormous amount of time and effort to this application. But there is also no doubt that the application has no legal basis and must be dismissed.
Background
[3] The relevant background can be reduced to a few words. The applicant lodged a complaint with the Law Society of Upper Canada about one of his former personal injury lawyers. He alleged that the lawyer had failed to disclose a conflict of interest. The Law Society cautioned the lawyer and closed the file. At the applicant’s request the complaint was reviewed and again the file was closed. The applicant was not pleased with the way the Law Society dealt with his complaint and commenced an action for damages and other related relief against some of his former lawyers, the Law Society and its wholly-owned insurance subsidiary, the Lawyers’ Professional Indemnity Company (now known as LawPro).
[4] This application challenges the constitutionality of s. 5(4) of the Law Society Act,[^2] that was enacted in 1990 and that provides that the Law Society “may own shares or hold a membership interest in an insurance corporation incorporated for the purpose of providing professional liability insurance to members.” The applicant argues that the Law Society’s ownership of LawPro creates an obvious and unconstitutional conflict that not only interferes with judicial independence and the independence of the bar but also infringes his rights under ss. 7, 8, 10(b), 11(d) and 15 of the Charter of Rights.[^3]
The essence of the constitutional challenge
[5] The applicant’s complaint about s. 5(4) of the Law Society Act is primarily a complaint about the Law Society having an ownership interest in LawPro. Because of its role as insurer, says the applicant, the Law Society fails to do its job as regulator. The argument proceeds in two steps. First, the applicant argues that there is a direct connection between a finding of professional misconduct (i.e. breach of the Rules of Professional Conduct) and liability for negligence.[^4] He then argues that the Law Society as insurer “turns a blind eye” to its role as regulator in order to save money on insurance claims. The ownership of LawPro creates a financial incentive to ignore and not investigate allegations of lawyer misconduct.[^5]
[6] The applicant says this explains why his own complaint to the Law Society was dealt with so dismissively.
Analysis
[7] This application fails on a least three levels.
[8] Mr. Sweete’s understanding of the applicable law is profoundly misguided. The Supreme Court of Canada has made clear that there is no actionable connection between the breach of a rule of professional conduct and a judicial finding of negligence. In Galambos v. Perez,[^6] the Court explained that rules of professional conduct do not impose civil liability or confer private rights of action:
[T]here is an important distinction between the rules of professional conduct and the law of negligence. Breach of one does not necessarily involve breach of the other. Conduct may be negligent but not breach rules of professional conduct, and breaching the rules of professional conduct is not necessarily negligence. Codes of professional conduct, while they are important statements of public policy with respect to the conduct of lawyers, are designed to serve as a guide to lawyers and are typically enforced in disciplinary proceedings. They are of importance in determining the nature and extent of duties flowing from a professional relationship [case reference omitted]. They are not, however, binding on the courts and do not necessarily describe the applicable duty or standard of care in negligence [case references omitted].[^7]
[9] In other words, there is simply no legal basis for the applicant’s first assertion – that a regulatory finding of professional misconduct necessarily results in a judicial finding of negligence. The application therefore fails at the threshold.
[10] Secondly, even if the law were otherwise or if there was evidence that courts routinely impose civil liability for breaching a rule of professional conduct, the applicant would still have to provide evidence that the Law Society routinely declines to investigate and enforce professional conduct violations in order to reduce the costs of insurance. No such evidence has been presented.
[11] Thirdly, even if such evidence was available and had been presented to this court there would still be no analytical or evidentiary basis for the alleged breaches of the Charter of Rights. That is, assuming there was a conflict between the Law Society’s regulatory function and insurance function, which would obviously be a very serious matter if this were in fact the case, this would not result in any of the Charter breaches alleged herein.
[12] The applicant has presented no evidence that because of s. 5(4) of the Law Society Act, he has been deprived of his right to life, liberty or security of the person (s. 7); subjected to an unreasonable search or seizure (s.8); arrested and denied counsel (s.10(b)); charged with an offence and denied the presumption of innocence (s. 11(d)); or subjected to discrimination on one of the specifically enumerated or analogous grounds (s. 15(1)).
[13] Nor is there any credible evidence supporting the submission that the impugned statutory provision has interfered with judicial independence or the independence of the bar.[^8] This lack of evidence alone is fatal. As the Supreme Court noted in MacKay v Manitoba, “Charter decisions should not and must not be made in a factual vacuum.”[^9]
Disposition
[14] For all of these reasons, the application is dismissed.
[15] To their credit, the respondents do not seek costs and therefore no costs are awarded.
Date: August 19, 2015 Belobaba J.
[^1]: The claim against the Attorney General of Canada was discontinued on March 27, 2015.
[^2]: R.S.O 1990, c. L.8.
[^3]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[^4]: As the applicant states in his Reply Factum: “A failure by a licensee to meet his or her professional obligations as set out in the Rules of Professional Conduct can and will amount to a failure to meet the standard of care owed to a client...The existence of disciplinary sanctions imposed by the Law Society as against a licensee will necessarily impact the likelihood that the same licensee might be found to have been negligent.”
[^5]: As the applicant states in his Reply Factum: “The Law Society’s disposition of disciplinary issues affects the number of made and paid claims to LawPro...the Law Society refrains from taking appropriate action because it is aware of the impact that the same might have on a potential negligence action as against the same licensee. That the Law Society has an ownership interest in LawPro is the very reason that disciplinary sanctions are not imposed by the Law Society when they ought to be...The Law Society has real and substantial motivations to turn a blind eye to improper conduct by its licensees. There is direct financial incentive to ignore or disincentive to investigate allegations of improper conduct.”
[^6]: Galambos v. Perez, 2009 SCC 48.
[^7]: Ibid., at para. 29.
[^8]: The applicant does not explain how the LawPro insurance structure for judicially-determined civil claims erodes the independence of either the judiciary or the bar.
[^9]: MacKay v Manitoba, 1989 26 (SCC), [1989] 2 S.C.R. 357 at 361.