Court File and Parties

COURT FILE NO.: CV-19-622512 DATE: 20230823

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL ALEXANDER ROBSON Applicant – and – LAW SOCIETY OF ONTARIO Respondent

Counsel: Paul A. Robson, Applicant, In Person and Richard K. Watson, co-counsel for the Applicant Rhoda Cookhorn, for the Respondent

HEARD: August 22, 2023

Papageorgiou J.

Overview

[1] Mr. Robson is a lawyer licensed to practice in Ontario. He has had a number of disputes with the Law Society. Some issues are ongoing. For example there is an appeal before the Divisional Court to be heard on September 14, 2023.

[2] Mr. Robson brought this Application to challenge the vires of the costs rules in the Law Society Tribunal’s Rules of Practice and Procedure, specifically the provision that sets out circumstances in which costs may be awarded against the Law Society.

[3] The Law Society brought a motion to strike this Application as disclosing no reasonable cause of action.

[4] Both the motion and the Application were scheduled to be heard together for a full day.

[5] This matter was scheduled to be heard by me on August 22, 2023.

The Issue

[6] These reasons are written to explain why this matter did not proceed which related primarily to the failure of both sides to file the proper materials in advance of the matter.

Discussion

[7] There was a schedule which timetabled the Applicant’s amendment of his Application, as well as the usual steps.

[8] Unfortunately, the Applicant did not amend his Application in accordance with the timetable. When the Law Society filed its factum, he took the position that this was inappropriate and took advantage of his slip.

[9] The parties then became embroiled in a dispute over this issue when all they had to do was agree that the Court could consider his Amended Application even if not filed in accordance with the timetable-since that is what was always contemplated in any event.

[10] Instead, the Applicant failed to file a confirmation form, which appears to be because of this dispute. Then, he took the position that the motion should not proceed because it would be prejudicial to hear the motion without taking into account the Amended Application.

[11] When the matter came before me, the only materials filed were the motion to strike. There was no Application filed with those materials. It appears that the Law Society did not do so because it expected both matters to be heard together; if so the Applicant would file the Application.

[12] Nevertheless, once the Application was not confirmed and thus could not proceed, it was up to the Law Society to ensure that all necessary materials were before the Court. It is impossible to consider a motion to strike without having the pleadings before the Court.

[13] Because of the backlog, I agreed that I would accept the Amended Application and hear both matters even though one was not confirmed. This is what both parties wanted and had they simply had a conversation about whether the Amended Application could still be before the court, both matters would have been confirmed and all materials would have been filed so that I could have reviewed them fully prior to the hearing.

[14] Unfortunately, once I began hearing the submissions, I realized that I had a conflict because I may have had some peripheral involvement with the matters at issue in a professional capacity. At the very least, I could not be sure that I had not. While there was some reference to issues that may have alerted me to this in Law Society’s factum for the motion, it was not apparent to me until I began hearing the submissions on all issues which also related to the merits of the Application.

[15] Had the original Application or Amended Application been submitted in advance, which would have given me an opportunity to prepare and fully understand the issues, I would have recognized the conflict before the matter was argued. I could have arranged to switch this Application and motion with another judge in advance so that the matter could proceed.

[16] By the time this issue became apparent, it was too late and the matter had to be adjourned to November 6, 2023.

[17] I am not meaning to criticize the lawyers here or cause embarrassment by writing this endorsement. Litigation practice is difficult; I did not discern from these Counsel any lack of conscientiousness.

[18] But it is, nevertheless, important to understand the impact of Counsels’ failure to file the necessary materials on the backlog.

[19] I wish to emphasize that Counsel need to make sure before they go to court the Judge will have everything he or she needs.

[20] Otherwise, the backlog increases.

[21] The matter is adjourned to November 6, 2023 for a full day.

[22] I make the following orders, which I have referenced from similar Orders made by Akbarali J.

a) All materials shall be uploaded to CaseLines five days before the hearing. The parties must take care to ensure that their materials are uploaded into the correct bundle, i.e. motion materials into the correct motion bundle, pre-trial materials into the pre-trial bundle, etc.

b) All materials shall be hyperlinked, including references to the evidence and law in the factums, and references to exhibits in the affidavits. Links to the law in the factum should link to the portion of the decision on which counsel relies. Affidavits and/or exhibits to affidavits shall not be uploaded as separate documents in CaseLines but rather uploaded as part of a volume in a motion record.

c) All indices must hyperlink to the documents described in them, and all documents must link back to the index of the volume in which they are contained. The parties must confirm that the hyperlinks are working on CaseLines, and specifically that in uploading the documents to CaseLines, the hyperlinks have not been scrubbed.

d) The book of authorities shall consist of a hyperlinked index, and copies of any cases that are not available online.

e) The parties should attempt to agree on costs in advance of the motion, if possible. If not possible, costs outlines shall be uploaded by the outset of the motion, along with any offers to settle, which shall be clearly marked so the hearing judge does not inadvertently view them prior to determining the motion on the merits.

f) The parties shall, when listing on their Motion Confirmation Form the “Materials Filed and to be Relied on at the Hearing”, include CaseLines document numbers and page references for each document.

g) The parties shall come prepared to argue the matter using CaseLines page numbers, and shall confer with each other to ensure all parties are using the same set of page numbers (i.e., either the master or the current). The parties may wish to use the “direct to” feature or presentation mode on CaseLines.

h) The parties shall email a word copy of their factums, and a word copy of their proposed draft order or judgment, to the hearing judge’s assistant in advance of the motion.

i) Once documents have been uploaded to CaseLines, they shall not be removed, even if to correct technical errors, without first confirming with a judge that they may be removed.

j) Unless they are relevant for some reason, affidavits of service shall not be uploaded into CaseLines.

k) The following weblink addresses frequently asked questions in the use of CaseLines: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/faq-caselines/

l) The parties are reminded that technical support for CaseLines is available by telephoning 1-800-290-9378.

m) Failure to comply with these requirements may result in the matter not proceeding at the designated time.

Papageorgiou J. Released: August 23, 2023

Reasons for Judgment

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL ALEXANDER ROBSON Applicant – and – LAW SOCIETY OF ONTARIO Respondent

REASONS FOR JUDGMENT Papageorgiou J. Released: August 23, 2023