COURT FILE NO.: 147/17 & 148/17
DATE: 2018 06 12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Court File: 147/17
HER MAJESTY THE QUEEN Respondent
– and –
A.R. Applicant
D. King, for the Crown
Mr. Junor, Agent
BETWEEN:
HER MAJESTY THE QUEEN Respondent
-and-
CRISTIAN BIRON Applicant
Court File: 148/17
D. King, for the Crown
Cristian Biron, Self-Represented
HEARD: June 11, 2018
ENDORSEMENT
CONLAN J.
I. Introduction
[1] On June 11, 2018, in Milton, I heard two related Applications. After hearing submissions by the two Applicants, both matters were dismissed for mootness, with written reasons to follow. These are those reasons.
The Background
[2] The Applicant, A.R., was charged with assault. The Crown proceeded summarily. The proceeding was to be dealt with in the Ontario Court of Justice, more specifically, the Youth Court under the Youth Criminal Justice Act. Obviously, A.R. was a minor at the time of the alleged offence.
[3] A.R. chose to be represented by Mr. Cristian Biron, a paralegal duly licensed by what is now the Law Society of Ontario.
[4] On October 16, 2017, with the trial looming and set for February 2018, the presiding Justice ruled that Mr. Biron could not represent A.R. because of the Law Society’s bylaws, in particular, section 6 of By-Law 4, set out below as reproduced from paragraph 41 of the Crown’s Factum in the Application brought by Mr. Biron:
According to section 6(2) of the Law Society of Upper Canada’s By-Law 4, paralegals in Ontario are authorized to:
“1. Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
- Represent a party before,
i. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,
ii. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,
iii. in the case of a proceeding under the Criminal Code, before a summary conviction court.
iv. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, and
v. in the case of a proceeding before a person dealing with a claim or a matter related to a claim, before the person.
Anything mentioned in subsection 1(7) of the Act, provided the activity is required by the rules of procedure governing a proceeding.
Select, draft and complete or revise, or assist in the selection, drafting, completion or revision of, a document for use in a proceeding.
Negotiate a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
Select, draft, complete or revise, or assist in the selection, drafting, completion or revision of, a document that affects a party’s legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.”
Law Society of Upper Canada, by-law No 4, By-law 4, s 6(2)
[5] Dissatisfied with that ruling, the Applicants, A.R. and Mr. Biron, both asked this Court to set aside that ruling.
II. Analysis and Conclusion
[6] At Court on June 11th, A.R.’s uncle (a non-lawyer), Mr. Junor, was permitted to speak on behalf of A.R. The young man, A.R., now 18 years old, was present in the Courtroom and consented on the record to that. Frankly, the Crown was correct to oppose that procedure, however, sometimes Courts have to pick their battles. Mr. Biron spoke on his own behalf.
[7] In the circumstances, it was unnecessary to hear from the Crown. Both Applications are clearly moot and were therefore dismissed. The Crown rightly abandoned its request for costs.
[8] Why are the Applications moot? It is simple. The assault charge has been withdrawn by the Crown. There is no longer any criminal process against A.R. There is no longer anything to have anyone, paralegal or not, represent him on.
[9] Judicial resources are scarce. Judges are not in the habit of deciding things on their merits when the decision has no meaning.
[10] One of the leading authorities on the application of the doctrine of mootness is the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC), 1989 CarswellSask 241.
[11] Taking guidance from that decision, there is a two-stage process to the doctrine of mootness. First, ask oneself whether the underlying dispute, the tangible and concrete matter, has disappeared, resulting in a pure academic exercise. Second, if so, should the court depart from the normal practice to not adjudicate a moot matter?
[12] At the first stage, the onus is on the party arguing in favour of mootness, here the Crown. The standard is on balance. At the second stage, the onus shifts to the other side, here A.R. and Mr. Biron. Again, the standard of proof is on balance.
[13] Applying the law to our facts, it is critical to review the relief sought by the Applicants. In his Notice of Application, A.R. sought, in the main, a “declaration that a paralegal may represent the Applicant in this matter”. In his Notice of Application, Mr. Biron sought, in the main, a “declaration in the nature of mandamus that the Applicant should be allowed to represent [A.R.] in this matter”.
[14] There is no more “this matter”. Thus, the Applications are clearly moot.
[15] At the second stage of the analysis, there is absolutely no good reason for this Court to entertain the matters on their merits. On an examination of every relevant factor mentioned in Borowski, supra, the position of the Applicants fails. Adjudicating these Applications on their merits would amount to a colossal waste of precious judicial resources. Any decision would have no meaningful impact on A.R. Any decision would have minimal impact on Mr. Biron as his interests lie in challenging the Law Society’s rules, not one decision made by one judge in one case. And finally, this Court is not eager to usurp the role of the regulator, the Law Society, at least not in the absence of having that regulator provided a chance to participate in the process.
[16] These are the reasons why the Applications were dismissed.
Conlan J.
Released: June 12, 2018