Court File and Parties

COURT FILE NO.: CV-18-590118 DATE: 20180803 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LAW SOCIETY OF ONTARIO, Applicant – AND – TIMOTHY EDWARD LEAHY, Respondent

BEFORE: E.M. Morgan J.

COUNSEL: Simon Bieber and Alex Fidler-Wener, for the Applicant Timothy Edward Leahy, in person

HEARD: July 25, 2018

Reasons for Judgment

I. Practicing law without a license

[1] The Applicant, the Law Society of Ontario (“LSO”), seeks a statutory injunction under section 26.3 of the Law Society Act, R.S.O. 1990, c. L.8 (the “LSA”) restraining the Respondent from engaging in the practice of law and provision of legal services without a license.

[2] This Application follows on the heels of an Order dated March 17, 2018 issued against the Respondent. That Order restrained the Respondent from holding himself out on various websites and other mediums as a person authorized to practice law and provide legal services in Ontario. The present Application is thus the next step in that it seeks to enjoin him from actually engaging in the activities that he has already been enjoined from promoting himself as authorized to do.

[3] Section 26.1(1) of the LSA provides that only licensees may practice law or provide legal services in Ontario. The Respondent concedes that he is not a licensee of LSO, having had his license revoked on December 10, 2014. By a series of admissions at Qs 30-35 of his cross-examination on the affidavit filed in this proceeding, the Respondent acknowledges that on an ongoing basis he provides legal services in the field of immigration, drafts documents and affidavits on behalf of clients, files immigration-related documents in Federal Court in Toronto, and provides legal advice to clients.

[4] Section 1(5) and (6) of the LSA define what it means to provide “legal services” as follows:

(5) For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.

(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:

1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.

2. Selects, drafts, completes or revises, on behalf of a person,

i. a document that affects a person’s interests in or rights to or in real or personal property,

ii. a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person,

iii. a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as a document that relates to the formation, organization, reorganization, registration, dissolution or winding-up of the entity,

iv. a document that relates to a matter under the Bankruptcy and Insolvency LSA (Canada),

v. a document that relates to the custody of or access to children,

vi. a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights or responsibilities referred to in subparagraphs i to v, or

vii. a document for use in a proceeding before an adjudicative body.

3. Represents a person in a proceeding before an adjudicative body.

4. Negotiates the legal interests, rights or responsibilities of a person.

[5] These subsections effectively bring all of the activities in which the Respondent engages within the definition of legal services. As LSO’s counsel points out, on the admissions alone the Respondent has engaged in activities covered by section 26.1 of the LSA. In addition, there is uncontroverted affidavit evidence from clients of the Respondent that he has been providing these services – which include drafting legal documents, providing immigration law advice, and filing documents in Federal Court – up to the time of the hearing of this Application.

[6] At the hearing, I asked the Respondent where he does all of this work. He responded forthrightly that he works entirely out of his premises in North York, Ontario. He does not contest the fact that he continues to do so, but rather raises a number of legal arguments aimed at establishing that, contrary to the position taken by LSO, he has a legal entitlement to do so.

II. The Respondent’s defences

[7] The Respondent raises numerous argument in defence of the allegations against him, none of which have any cogency. They are discussed in sequence below.

a) LSO’s authority to revoke a license to practice law

[8] The Respondent contends that despite LSO’s revocation of his law license, he is still entitle to practice law. This argument is based on his view that since LSO never issued any such license it could not have revoked it.

[9] On December 10, 2014, the Respondent’s license to practice law or provide legal services in Ontario was revoked. He did not appeal the LSO tribunal’s revocation decision.

[10] The Respondent maintains that despite this decision, he still has the Court Certificate of Qualification (“Certificate”) that he received when he was admitted to practice in 1991. That Certificate states that the Respondent “was duly sworn in and enrolled as a solicitor of the Court of Appeal for Ontario and of the Ontario Court of Justice.”

[11] In one sense, the Respondent is correct – that is, only in 2006 did LSO get the authority to license solicitors. Before that, a newly minted lawyer was enrolled as a solicitor of the Court. This was one step of a two-step process that a person needed to complete in order to practice law in Ontario. The other one was to be conferred the degree of Barrister-at-Law and be called to the bar by the benchers of LSO (in its previous incarnation as the Law Society of Upper Canada). Taken on its own, the Certificate relied on by the Respondent never provided authorization to practice law or provide legal services in Ontario.

[12] LSO has filed an affidavit of its General Counsel, Elliot Spears, who has explained that the licensing process has been revised and subsumed by the current iteration of the LSA. LSO is now authorized to license lawyers and to revoke a licensee’s license, and is the only body in the province authorized to do so. Ontario lawyers authorized to practice law under prior versions of the LSA have become licensees of LSO for all licensing and regulatory purposes.

[13] LSO’s decision in December 2014 to revoke the Respondent’s license is the only process that currently exists for disqualifying a licensee from practice. It is valid and binding on the Respondent.

b) LSO’s jurisdiction over immigration law practice

[14] The Respondent submits that LSO has no authority over the practice of immigration law or provision of legal services in respect of immigration law and immigration proceedings in Federal Court. He argues that those activities are governed by the Federal Courts Act, R.S.C. 1985, c. F-7 (“FCA”) and the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). In making this submission, he misreads or misapplies both of those statutes.

[15] The Respondent’s first argument in support of his position reiterates the position he takes with respect to the Certificate issued to him upon his becoming a lawyer in the first place. He relies on section 11(2) of the FCA, which provides that, “Every person who is an attorney or a solicitor in a superior court of a province may practice as an attorney or a solicitor in the Federal Court of Appeal or the Federal Court.”

[16] The Respondent contends that since the Certificate issued to him by the Ontario Court of Appeal enrolling him as a solicitor of that court has never been withdrawn by the Court, he continues to be authorized to practice law in Federal Court. As indicated above, this argument does not apply under the current version of the LSA. The Respondent has had his license to practice revoked by LSO, and can therefore no longer practice before the Ontario courts or the Federal Court. The same conclusion has already been reached by the Federal Court itself in a challenge brought by the Respondent in which he raised the identical argument: Forefront Placement Ltd. v Minister of Employment and Social Development, 2017 FC 183, at paras 10-11, appeal dismissed 21 September 2017, Toronto A58-17 (FCA).

[17] Under section 26.1 of the LSA, LSO has statutory authority to regulate the practice of law in this province. As counsel for LSO point out in their factum, “[t]here are no carve outs or exceptions in respect of immigration law.”

[18] The Respondent attempts to put forward an argument to the contrary based on the Supreme Court of Canada’s decision in Law Society of British Columbia v Mangat, 2001 SCC 67, [2001] 3 SCR 113. In Mangat, the Court had to consider the interplay between British Columbia’s Legal Profession Act (“LPA”) and the then existing version of the Immigration Act. Mangat was not licensed to practice law under the LPA, but at the time the Immigration Act permitted non-lawyers to provide certain legal services for a fee in respect of appearances before the Immigration and Refugee Board (the “IRB”).

[19] The Supreme Court held that to the extent that there was a direct conflict between the BC law and the Federal law, the Federal law was paramount, but that absent a direct conflict the two laws could remain in force and co-exist. In that case, the Court found that there was a direct conflict with respect to one part of the arrangement since the Immigration Act permitted non-lawyers to provide legal services for compensation whereas the LPA prohibited them from providing those services. However, the Court went out of its way clarify that non-lawyer appearances were limited to proceedings before the IRB, and emphasized that the Immigration Act did not permit the practice of immigration law by non-lawyers for any other purposes (including appearances before the Federal Court).

[20] Accordingly, the Mangat case never did authorize a non-lawyer such as the Respondent to practice law in the Federal Court. Now, however, even the limited exception which that case left open for practicing before the IRB has been removed. The old version of the Immigration Act has been repealed and has been replaced by IRPA. Section 91(2) of IRPA now restricts practice before the IRB to lawyers and paralegals who are members of a provincial law society (or of the Chambre des notaires du Quebec), or members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The Respondent is not a member of any of those organizations.

[21] I note that the Respondent contends that there is currently yet another conflict between the LSA and the IRPA, with a view to arguing that, as stated in Mangus, in the event of a conflict the federal statute prevails. He submits that the IRPA “permits anyone to provide immigration assistance gratis but the LSA …makes no exception for providing legal assistance without a fee.”

[22] In the first place, this is not a conflict that triggers the federal paramountcy doctrine. As the Supreme Court stated in the leading case of Multiple Access Ltd. v McCutcheon, [1982] 2 SCR 161, 191, federal statutes are declared paramount, and the provincial statute inoperative, where “‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other.” That is not the case here. The IRPA does not affirmatively authorize an unlicensed person to provide legal services, whether for free or for a fee.

[23] In a provision that has no bearing on the Respondent’s Federal Court and advice-giving activities, section 167(1) of the IRPA authorizes the provision of unpaid legal services to persons with cases before the IRB. However, that provision must be read in conjunction with section 91(2) of the IRPA which, as set out above, requires that the provider of such services be a member in good standing of a provincial law society or the ICCRC. In other words, section 167(1) of the IRPA clarifies that the requirement that advocacy be done by a provincially licensed paralegal, lawyer, Quebec notaire, or ICCRC member, applies to services provided on a pro bono as well as a fee-paying basis.

[24] In any event, the evidence in the record is clear that the Respondent does not in fact engage in the provision of pro bono legal services. He renders his legal services for fees, and these fees are the source of his income. That income-producing practice is prohibited.

[25] Accordingly, the Respondent is not authorized under either the LSA or the IRPA to practice immigration law or appear on behalf of clients in any immigration proceedings.

c) The exception for other regulated professions

[26] The Respondent submits that notwithstanding the inapplicability of the Mangat case and the lack of any carve-out for immigration practice, the legal services that he provides fall within the regulated professions exception in section 1(8) 1 of the LSA. That section deems an individual not to be practicing law where he or she is: “A person who is acting in the normal course of carrying on a profession or occupation governed by another Act of the Legislature or an Act of Parliament, that regulates specifically the activities of persons engaged in that profession or occupation.”

[27] As counsel for LSO indicated in response to my question at the hearing, this is the section of the LSA that, for example, permits members of the Chartered Professional Accountants of Ontario Act, 2010 to provide clients with professional advice with respect to the Income Tax Act in the course of practicing tax accounting. Their professional activities are governed by the Chartered Professional Accountants of Ontario Act, 2010, and not by the LSA.

[28] Section 1(8) 1 of the LSA provides no assistance to the Respondent. He is not a member of any other professional regulatory body, including the ICCRC, and his professional activities are therefore not governed by any other statute or set of regulations.

[29] The Respondent conceded in cross-examination that his sole source of income since the revocation of his license by LSO has been the practice of immigration law and the provision of immigration-related legal services. This work is therefore not done by him in the course of carrying on any other regulated profession. He therefore does not come within the section 1(8) 1 exception to the LSA’s requirement that only a licensee my practice law, including immigration law.

d) Authorization to commission affidavits

[30] Evidence in the record shows that since his license was revoked the Respondent has continued to act as a commissioner of oaths in commissioning affidavits for clients. The Legal Appointments Coordinator for the Ministry of the Attorney General has confirmed for the record that the Respondent has never been appointed as a non-lawyer commissioner of oaths or a non-lawyer notary public.

[31] The Respondent’s prior status to commission affidavits came from his license to practice law. Section 1 of the LSA and subsection 1(1) 4 of O. Reg. 386/12 under the LSA provide that persons who are licensed to practice law in Ontario are commissioners for taking affidavits in Ontario by virtue of their office. If they lose that office, they lose their status as commissioners. There is nothing more to the argument in this respect. The Respondent is not authorized to commission affidavits.

[32] The Respondent also contends that he was appointed a notary public when he was still a lawyer, and that the appointment as a notary is a “lifetime appointment”. This argument, however, makes a point leading nowhere. The Respondent has not produced any documentary evidence of his appointment as a notary public, nor has he produced a notarial seal. On the state of the record before me, the Respondent’s submission in this respect must therefore fail.

e) Acting through a corporate vehicle

[33] The Respondent argues that he is general counsel to a closely held corporation, or a number of closely held corporations, located outside of Ontario, and that he does not provide legal services personally but rather only provides them as general counsel to those corporate entities. He submits that LSO has “no jurisdiction over corporations which are not law firms and which do not operate out of premises in Ontario.”

[34] Section 61.0.7 of the LSA provides that, “[n]o corporation, other than a corporation that has been incorporated or continued under the Business Corporations Act, R.S.O. 1990, c. B.16 and holds a valid certificate of authorization” shall practice law in Ontario or provide legal services in Ontario.” Nor is any other type of corporation permitted to hold themselves out as practicing law or providing legal services in the province. This restriction is reinforced by By-Law 7 under the LSA, “Business Entities, Part II – Professional Corporations”, which likewise restricts the practice of law through a corporate vehicle to professional corporations regulated by LSO.

[35] The geographical point made by the Respondent is not relevant to the issue at hand. Whether his corporations are physically located in Ontario is not the point; as counsel for LSO state in their factum, “It makes no difference whether [the Respondent] drafts documents for use in court proceedings in Ontario from a computer in London, England or London, Ontario.”

[36] Likewise, it is irrelevant where the websites advertising him as an Ontario lawyer are hosted or domiciled, or whether they target potential clients outside of Ontario. The only relevant point is that the Respondent continues to advise and otherwise assist clients with immigration applications and Federal Court cases in Ontario, and continues to hold himself out as a person who is permitted to carry on those activities.

[37] The Respondent states that as general counsel of Forefront Migration Ltd., his activities fall within the exception in section 1(8) 2 of the LSA. That section excludes from the licensing requirement “an employee or officer of a corporation who selects, drafts, completes or revises a document for the use of the corporation or to which the corporation is a party”. He also contends that he fits within the “in-house legal services provider” exception in section 30(1) of By-Law 4 of LSO. That section provides an exception from the licensing requirement where a non-lawyer is employed by a single employer, and provides legal services only “for and on behalf of the employer” and to no other employer.

[38] The evidence before me is clear, however, that the Respondent’s activities are not within the terms of section 1(8) 2 of the LSA or section 30(1) of By-Law 4. The Respondent provides advice, drafts documents, and otherwise assists multiple clients with cases in Federal Court. The activities are not “for the use of a corporation”, they likewise are not for use in a proceeding “to which the corporation is a party”, nor are they done “for and on behalf of the [Respondent’s sole] employer.” They are services performed for clients as if the Respondent were fully engaged in the practice of law.

[39] The Respondent’s corporations appear to be nothing more than fronts for the Respondent himself acting as if he were a licensed lawyer. The Respondent’s activities therefore do not fall within the general counsel exception or the in-house legal service provider exception to the prohibition on practicing without a license found in section 26.1(1) of the LSA.

[40] For clarity sake, counsel for LSO has emphasized that this Application only seeks to have the Respondent cease engaging in the unlicensed practice of law and provision of legal services. It is not targeting his companies – i.e. Forefront Migration Ltd. and Forefront Placement Ltd. – nor is it targeting any other personnel (if any exist) that work for or are associated with those companies. To the extent that those companies carry on businesses and activities that do not amount to a cloak for the Respondent practicing law or providing legal services, this Application does not speak to their activities at all.

[41] The evidence in the record before me, including affidavits from several clients, demonstrates that the Respondent has been practicing law and providing legal services through those two corporate vehicles. LSO’s remedy is aimed at ensuring that the Respondent neither personally nor in any corporate capacity continues with this unlicensed activity.

III. Disposition

[42] LSO is granted a permanent injunction restraining the Respondent from practicing law and providing legal services in Ontario, contrary to section 26.1 of the LSA, whether personally or through any corporate vehicle.

[43] Counsel for LSO advise me that an appeal of the Order of March 7, 2018 enjoining the Respondent from holding himself out as a licensed Ontario lawyer is scheduled to be heard in about two months’ time. The Respondent has advised me that if he is not successful in the Application before me, he will be seeking to appeal it together with the March 7, 2018 Order. Accordingly, for ease of reference and the convenience of all concerned, the relief granted herein will be combined with the terms of the March 7, 2018 Order, together with clauses addressing breaches of that Order, to form one omnibus Order.

IV. Costs

[44] LSO is entitled to its costs of this Application.

[45] I do not agree with any of the Respondent’s arguments, and have said so in these reasons for judgment. Moreover, some of the language that the Respondent uses in his factum makes his points in a way that is harsh and insulting to LSO’s counsel, which is uncalled for and is to be discouraged by the court. That said, the price that the Respondent pays for engaging in unprofessional and unconvincing advocacy is that he has lost the case. Otherwise, there was nothing in the way the Respondent conducted the litigation that prolonged it or increased the costs beyond what any fully defended Application might cost. The Respondent was entitled to defend himself, no matter how unsuccessfully.

[46] Accordingly, costs will go to LSO on a partial indemnity scale rather than the substantial indemnity scale that LSO’s counsel request in their factum. In their Bill of Costs, LSO puts its partial indemnity costs at just over an all-inclusive amount of $29,500. Given that the Application involved substantial legal research, affidavit material, cross-examinations, and a half-day hearing, that is not an excessive amount. Certainly, the investment of time and effort by LSO counsel paid off in a well-argued and well documented case. This amount reflects the principle of indemnity that is built into the awarding of costs, and is not so excessive that it would be beyond the reasonable expectations of an experienced litigant like the Respondent: see Rules 57.01(1)(0.a) and (0.b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[47] The Respondent shall pay LSO costs in the amount of $29,500, inclusive of all fees, disbursements, and HST.

Morgan J. Date: August 3, 2018