Court File and Parties

Court File No.: CV-18-596506 Date: 2019-05-01 Superior Court of Justice - Ontario

Re: The Law Society of Upper Canada And: Elizabeth Dias

Before: Mr. Justice Chalmers

Counsel: J. Katz, for the Applicant E. Dias, Self-Represented

Heard: April 16, 2019

Endorsement

Overview

[1] The Law Society of Upper Canada (now the Law Society of Ontario) (“LSO”) brings this application for a permanent injunction restraining the Respondent, Elizabeth Dias, or any company controlled by her, from practicing law or providing legal services in Ontario.

[2] Ms. Dias is not licensed by the LSO to provide legal services either as a lawyer or a paralegal. Although she is not licensed, she has provided assistance to Don Fex in a series of legal proceedings. The LSO takes the position that the assistance amounts to legal services rendered. Ms. Dias takes the position that she has only assisted a friend in his legal issues and has not provided legal services.

[3] For the reasons that follow, I find that Ms. Dias has provided legal services to Mr. Fex, notwithstanding the fact she does not have a licence to do so. I allow the application and grant a permanent injunction restraining Ms. Dias or any company controlled by her from performing any legal services in Ontario.

Preliminary Issue

[4] At the outset of the motion, Ms. Dias advised that it was her intention to call viva voce evidence at the hearing of the Application. For the reasons set out below I did not grant leave.

[5] This matter was spoken to at Civil Practice Court (“CPC”) on December 17, 2018. Although Ms. Dias was not present at the CPC, she had advised counsel for the Applicant that she intended to call viva voce evidence on the Application hearing. Justice Diamond directed the parties to attend a Chambers Appointment to address the return date of the Application and timetable.

[6] Ms. Dias was advised of Justice Diamond’s direction by letter dated December 17, 2018 from counsel from the LSO. A copy of the Order was forwarded to Ms. Dias. Ms. Dias was also advised that the Chambers Appointment was scheduled for January 15, 2019.

[7] On January 15, 2019 this matter was heard by Justice Akbarali. Again Ms. Dias did not attend the hearing. Justice Akbarali noted that there was no explanation from Ms. Dias as to why she wanted to call viva voce evidence and depart from the usual procedure of adducing evidence on an Application by way of affidavit. Justice Akbarali ordered that the evidence would be adduced as per the usual procedures. She set a timetable which required Ms. Dias to deliver affidavit evidence by February 15, 2019 and that cross-examinations would be completed by March 15, 2019.

[8] The solicitor for the LSO wrote to Ms. Dias and advised that the court set a timetable with respect to the introduction of evidence. A copy of the Judge’s Order and the timetable was provided to Ms. Dias.

[9] Counsel for the LSO sent a follow-up letter on February 6, 2019 advising that any evidence she wishes to rely on is to be by way of affidavit and is to be delivered by February 15, 2019. Ms. Dias did not deliver an affidavit within the time limit set out in the timetable. By letter dated February 22, 2019 she wrote to counsel for LSO advising that she will not submit an affidavit and that her witnesses will be in court. She stated that she cannot afford the expense of filing materials.

[10] Pursuant to R.39.03 of the Rules of Civil Procedure, the Judge hearing the Application may grant leave to allow viva voce evidence. I note that this is “exceptional” relief and the usual method of adducing evidence on an Application is by way of affidavit.

[11] Justice Akbarali ordered that the evidence was to be by way of affidavit and set a timetable for its delivery. I do not see any reason to depart from Justice Akbarali’s order, or the usual procedure for adducing evidence on an application. I therefore do not grant leave to allow Ms. Dias to call viva voce evidence on the Application.

Analysis

[12] The LSO brings this application pursuant to s.26.1 of the Law Society Act (the “Act”). This section provides that no person other than a licensee shall practice law and provide legal services in Ontario. It is conceded that Ms. Dias is not licensed. The issue to be determined on this Application is whether Ms. Dias is practicing law or providing legal services in Ontario.

Is Ms. Dias Providing Legal Services?

[13] The Act provides that a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regards to the circumstances or objectives of a person: s.1(5) of the Act.

[14] The Act at s. 1(6) sets out the type of services which will be considered to be providing legal services. Those services include providing advice as to the legal interests of a person, drafting a document that affects the legal interest of a person, representing a person in a proceeding before an adjudicative body or negotiating with respect to the legal interest of a person.

[15] In addition, Rule 15.01(3) of the Rules of Civil Procedure provides that an individual who is a party in a proceeding at the Superior Court of Ontario can either be represented by a lawyer or may act in person. There is no provision in the Rules that a person can be represented in a proceeding by someone other than a lawyer.

[16] The evidence establishes that Ms. Dias has been providing legal assistance and representation to Don Fex in litigation in the Superior Court of Justice involving Chad Robert Turton a.k.a. Chad Kroeger with respect to a copyright claim.

[17] Ms. Dias has purported to represent Mr. Fex and to provide legal services in the following proceedings:

1. Fex v. Turton, Moi and Lange, Court File No. CV-1125404 (the “First Hamilton Action”);
2. A Divisional Court appeal of the First Hamilton Action, Court File No. DC-16-0731 (the “First Hamilton Appeal”);
3. Fex v. Turton, Court File No. CV-16-303 (the “Brantford Action”);
4. Fex v. McCarthy Tétrault LLP and Turton, Court File No. CV-17-60401 (the “Second Hamilton Action”); and
5. A Divisional Court appeal of the Second Hamilton Action, Court File No. DC-17-00838 (the “Second Hamilton Appeal”).

[18] Ms. Dias first became involved in the litigation involving Mr. Fex after the First Hamilton Action was dismissed following a Summary Judgment motion. Ms. Dias filed an “Endorsement” complaining about the Summary Judgment decision. She referred to herself as Mr. Fex’s “voice”.

[19] On June 24, 2016, a Notice of Appeal was filed in the Divisional Court with respect to the dismissal of the First Hamilton Action. The Notice of Appeal is signed by both Mr. Fex and Ms. Dias. In correspondence with respect to the First Hamilton Appeal, it is stated that Ms. Dias will speak on Mr. Fex’s behalf.

[20] The First Hamilton Appeal was dismissed. Ms. Dias prepared documents which purported to appeal the dismissal of the First Hamilton Appeal. The Notice of Appeal was signed by Ms. Dias and Mr. Fex. The cover page of the Factum provides that it was prepared by Elizabeth Dias, “personal friend”. The Appeal was not properly perfected.

[21] With respect to the Brantford Action, the cover page of the action indicates that it was prepared by Ms. Dias.

[22] The Brantford Action was dismissed, with costs. On November 17, 2016, Ms. Dias appeared on behalf of Mr. Fex on a motion to compel his attendance at an examination in aid of execution. She requested that McCarthy Tétrault (counsel for the judgment creditor) copy her on all correspondence, with respect to the examination in aid of execution.

[23] Mr. Fex commenced the Second Hamilton Action. The Defendants brought a motion to have the action dismissed as an abuse of process. She filed a “Response” on behalf of Mr. Fex with respect to the request that the action be dismissed.

[24] The Second Hamilton Action was dismissed. Ms. Dias exchanged correspondence with Justice Sweeny and McCarthy Tétrault in which she stated that she was assisting Mr. Fex in the litigation and had prepared court documents on his behalf.

[25] Ms. Dias also filed an affidavit in the Second Hamilton Action which was affirmed on May 24, 2017. In the affidavit she states that she has “helped countless individuals in the courts”.

[26] Ms. Dias argues that she is not practicing law or providing legal services and instead is assisting Mr. Fex as a friend. She relies on the exception to the licensing requirements set out in s. 30 of By-Law 4 of the Act. This is the friend or neighbour exception. That section provides that a person who is not licensed as a lawyer or paralegal may provide the services that a person who holds a paralegal licence is authorized to provide, if the legal services are for a friend or neighbor, the person providing the services does not provide assistance in more than 3 matters a year and the person does not expect or receive any compensation.

[27] Ms. Dias is purporting to represent Mr. Fex in his proceedings in the Superior and Divisional Court. A person with a paralegal licence is not permitted to represent a person in the Superior Court and therefore the “friend or neighbour” exception does not apply to Ms. Dias.

[28] I am satisfied on the basis of the evidence set out above that Ms. Dias was providing legal services to Mr. Fex with respect to the various actions before the Superior and Divisional Courts.

Test for Awarding a Permanent Injunction

[29] S. 26.3(1) of the Act provides that where a person has contravened s. 26.1 of the Act, the Superior Court of Justice may issue a permanent injunction restraining the person from providing unauthorized legal services or practicing law.

[30] An injunction brought pursuant to s.26.3(8) is a public interest injunction, in that it is in the public interest to prevent unauthorized persons from practicing law: LSUC v. Chiarelli, 2013 ONSC 1428 aff’d 2014 ONCA 391 at para. 15. The legal principles with respect to a public interest injunction are as follows:

1. The court’s discretion is more fettered;
2. The Applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is not granted;
3. There is no need for the Applicant to pursue other enforcement remedies; and
4. Although the court continues to have discretion, the hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed: R. v. IPSCO Recycling Inc., 2003 FC 1518, at para. 51.

[31] As set out above, I have found that Ms. Dias has provided legal services to Mr. Fex in a number of different proceedings in the Superior and Divisional Courts. She has engaged in this conduct even though she is not licensed by the LSO.

[32] The actions and appeals for which she has provided legal services on behalf of Mr. Fex have been found to have no merit. The Brantford Action and the Second Hamilton Action have been dismissed as an abuse of process. The appeal of the First Hamilton Action was dismissed and the appeal of that decision was not perfected.

[33] As a result of the dismissal of the various actions and appeals, multiple costs awards have been made as against Mr. Fex. In addition, the presiding judge in the Second Hamilton Appeal noted that the appeal appeared to be the result of a “vexatious litigant”. I find that the actions of Ms. Dias has resulted in prejudice to Mr. Fex.

[34] Ms. Dias has failed to adhere to the orders of the various courts she has attended on behalf of Mr. Fex. Although she was advised that she cannot act on his behalf she has continued to do so. She reported several judges to the Canadian Judicial Council and sent letters to the Canadian Judicial Council, RCMP and the Prime Minister’s office complaining that the judges have not allowed her to represent Mr. Fex.

Conclusions

[35] For the reasons set out above, I find as follows:

1. Ms. Dias has practiced law and/or provided legal services to Mr. Fex in various proceedings in the Superior and Divisional Courts;
2. Ms. Dias is not licensed as a lawyer and therefore she is not authorized to provide legal services to Mr. Fex;
3. None of the exceptions which would allow an unlicensed person to provide legal services apply to Ms. Dias. In particular, the “friend and neighbour” exception at s. 30.4 of By-Law 4 of the Act applies only to services which could be provided by a licensed paralegal. A paralegal cannot represent a person in the Superior Court;
4. It is in the public interest to restrain Ms. Dias from providing legal services. She does not have legal training and does not have professional liability insurance;
5. Her actions on behalf of Mr. Fex has resulted in prejudice to him; and
6. Her behavior has shown a disregard for the courts and the public interest.

Disposition

[36] I conclude that the test for granting a public interest injunction has been satisfied. I allow the LSO’s Application and grant a permanent injunction pursuant to s. 26.3 of the Act restraining Elizabeth Dias and any company or business entity controlled by her, from practicing law or providing legal services in Ontario.

[37] I award partial indemnity costs to the LSO payable by Ms. Dias fixed in the amount of $6,925.00 inclusive of counsel fee, HST and disbursements.

Chalmers, J. Date: May 1, 2019