Court File and Parties

Court File No.: CV-22-00686449-0000 Date: 2024-07-22 Superior Court of Justice - Ontario

Re: Christian Chukwuedozie Chijindu, Applicant And: Law Society of Ontario, Respondent

Before: Akazaki J.

Counsel: Christian Chukwuedozie Chijindu, Self-Represented Lisa Quan, for the Respondent

Heard: July 9, 2024

Reasons for Decision

Overview

[1] The Law Society moved to dismiss Mr. Chijindu’s application to reinstate his law licence. Previously, the Law Society Tribunal had revoked it, and he exhausted all his appeals. He then invoked the Superior Court’s jurisdiction under s. 24(1) of the Charter to mount a flank attack toppling that entire procedural column, from the Tribunal up to the Supreme Court of Canada. It falls to this court to determine whether it can do anything for him now.

[2] The 99-page notice of application can be boiled down to a palpable equality-rights argument. It is that the Law Society and the Tribunal have one set of rules for lawyers such as Mr. Chijindu and another for lawyers belonging to establishment firms. He complained that the chair of the hearing panel was a partner at a law firm cited in court decisions for having charged excessive fees. In his opinion, his disbarment and the impunity of that law firm’s members for similar offences demonstrated unequal treatment under law, as prohibited by s. 15 of the Charter. He sought to expose the regulators’ complicity in protectionism by such firms against competition from new and racialized practitioners. He cited the anti-black racism identified by the Law Society’s own Working Group on Challenges Faced by Racialized Licensees as proof that his mistreatment by the society followed a systemic pattern.

[3] The rules governing the motion require me to assume Mr. Chijindu can prove his allegations and his premise. For the following reasons, I conclude this court lacks jurisdiction because it has no power to overturn the Tribunal’s revocation of a lawyer’s licence or to compel the Law Society to reinstate it. The absence of jurisdiction means I cannot opine on the legal merits of his discipline case.

Prior Conduct Proceedings and Appeals

[4] In 2020, the Hearing Division of the Tribunal revoked Mr. Chijindu’s licence to practice law. The decision followed its 2019 findings that he had engaged in serious professional misconduct in the aftermath of a fee dispute with his client, a company based in the United Kingdom. The client had contested his contingency fee for an action to recover proceeds of a commercial fraud by the client’s Ontario-based supplier.

[5] Although he disputed the Tribunal’s jurisdiction over lawyers’ fees, this was not a fair characterization of the issue leading to his disbarment. The court, exercising its authority over lawyer accounts, required him to reimburse his client for amounts found to be excessive. The story could have ended there. He then disobeyed the orders and rendered duplicative and false supplementary accounts to paper over his refusal to refund the fees. Finally, he transferred further funds out of trust without having delivered an account. The Law Society investigated and authorized a referral to the Tribunal. The fee dispute alone therefore did not lead to his disbarment: Law Society of Ontario v. Chijindu, 2019 ONLSTH 147, and 2020 ONLSTH 55.

[6] Mr. Chijindu unsuccessfully appealed to the Tribunal’s Appeal Division and to the Divisional Court, pursuant to ss. 49.29 and 49.38 of the Act. After the Court of Appeal denied leave to appeal, the Supreme Court of Canada finally ended the case by rejecting his further leave application on May 12, 2022.

[7] On September 1, 2022, Mr. Chijindu started this application in Superior Court to reinstate his licence.

[8] My analysis of the court’s jurisdiction to hear it will cover three points:

1. Procedure to Determine Jurisdiction
2. The Roles of the Law Society and the Tribunal
3. Section 24(1) of the Charter

1. Procedure to Determine Jurisdiction

[9] Rules 14.09 and 38.12 subject an application to the rules for dismissing or striking out an application in the same manner as rules 21 and 25.11, applicable to actions. I need not entangle myself in the cat’s cradle connecting these rules. There is no real point to a legal proceeding if the court cannot grant what the pursuer seeks. The gatekeeping role of any decision-maker is to check the limits of authority. In this case, the question of jurisdiction starts with general principles over subject matter, but the answer lies in the availability of a remedy.

[10] A common feature of all provincial court rules for dismissal of cases at the pleadings stage is the balance between shielding the court’s process from abuse or mootness and the injustice of discarding a case prematurely. In the case of assessing the viability of a claim or defence, such as in clause 21.01(1)(b) of the Ontario Rules of Civil Procedure, courts are required to determine whether it is “plain and obvious” that it cannot succeed, assuming the litigant can prove the facts: Hunt v. Carey Canada Inc., [1990] 2 SCR 959, at 968 and 980.

[11] A similarly strict standard applies to statutory privation of court jurisdiction. The court must be satisfied it lacks power to meet the litigant’s request before rejecting the case as unviable. Unlike the inquiry into scope of a cause of action or a defence, clause 21.01(3)(a) specifically grounds a defendant’s motion on the court’s lack of jurisdiction, also described as competence, over subject matter. The phrase “subject matter” is necessarily inclusive. As will be evident in the s. 24(1) Charter analysis, subject matter encompasses the parties, the facts defining the dispute, and the remedy.

[12] In cases of licensing and benefits, appeal rights and judicial review legislation restrict superior court power to remedies unavailable to the disputant in those channels. If the case looks like appeal or judicial review of an administrative act or quasi-judicial decision, it probably is. Many statutes, such as the Law Society Act, R.S.O. 1990, c. L.8, specify a right of appeal from decisions of licensing bodies, either internally or to various levels of courts, or to both. In Ontario, the catch-all judicial review of statutory authorities is the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Under the JRPA, s. 6, original jurisdiction for judicial review lies with the Divisional Court, except where urgency requires a hearing by a single judge of the Superior Court. Section 2 of the JRPA also allocated to the Divisional Court the historical jurisdiction of the Superior Court over prerogative writs, declaratory and injunctive actions against statutory authorities.

[13] Where legislation allocates disputes over statutory rights to a specific tribunal or agency, the facts and not the legal characterizations of the dispute define competence: Weber v. Ontario Hydro, [1995] 2 SCR 929, at para. 49. Participants’ conduct within a regulated sphere may resemble various common law torts and other wrongful conduct, but the statutory authority to grant or deny a right, licence, or benefit imposes a zone of exclusivity with which the courts do not have authority to intrude: Yang v. Co-operators General Insurance Company, 2022 ONCA 178, at paras. 6-8.

[14] Nevertheless, these cases inform the court that it ought not decline the availability of traditional or default court remedies unless the statute has allocated to the agency or tribunal the only remedies available from a particular dispute. The premise that administrative bodies must abide by and apply the Charter does not necessarily oust court jurisdiction if the bodies cannot grant remedies such as damages or injunctions. The inquiry into the availability of a Charter remedy from this court therefore depends on whether the specific remedy is one this court can provide Mr. Chijindu. If it cannot, there is no need to delve into jurisdictional exclusivity or concurrence.

[15] Can the Superior Court restore a disbarred lawyer’s licence to practice law or compel the Law Society or the Law Society Tribunal to do this? The answer to both issues will be that it cannot, as the next section will make clear.

2. The Law Society and the Tribunal’s Roles

[16] Through the Law Society Act, Ontarians have consented to allowing the legal profession to govern itself – up to a point. Whatever the political merits of the Bar’s continued independence, there can be no meaningful discussion about lawyer licensure in the absence of a distinction between the Law Society’s authority to confer status and the power of the Tribunal to remove it. This distinction leads to a crucial point. This court cannot order the Society to reinstate a lawyer disbarred by the Tribunal because the Society possesses no such power. An injunction against the Society, therefore, serves no end. Nor can the court order the Tribunal to reinstate him, without usurping the jurisdiction of the Divisional Court sitting on appeal or judicial review of the Tribunal’s decision. This double bind stems from the institution of Bar licensing in this province, both historically and in its current iteration.

[17] The Canadian legal profession remains a self-governing island in a common-law sea of state regulation. At the risk of over-simplification, American bar associations regulate with authority delegated from state courts, and British and Commonwealth jurisdictions have replaced law societies with state agencies: Devlin, Richard F., Heffernan, Porter, “The End(s) of Self-Regulation,” 45 Alta. L. Rev. 169 (2007-2008), at 170-71 and 183-85.

[18] Ontario lawyers’ dual qualification as barristers and solicitors is a vestige of pre-Confederation Upper Canada. The shortage of qualified persons meant lawyers had to be both pleaders and drawers of documents. This was a departure from England, where the two were and remain different professions. Even now, the Law Society confers the degree of barrister-at-law, and the Superior Court enrols solicitors. Beyond the labels, the two institutions enjoy concurrent status as co-regulators even if the purpose and scope of their authority are different. The court’s authority over lawyers pleading and appearing before it is rooted in the fairness of the instant proceeding and the judiciary’s power to control the courtroom. The Law Society regulates the profession in and out of the courtroom: Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 SCR 772, at paras. 54-55 and 104.

[19] Unlike the unitary court-based admission of candidates to the practice of law in the United States, Canadian courts enrol lawyers licensed by law societies but do not confer any status. This court has no authority to grant lawyers licences or to compel the Law Society to do so. Nor can this court remove a solicitor from the rolls. The only residual authority this court possesses to allow a former lawyer to plead before it appears in the agency rules, such as the exceptions to subrule 15.01(2). The authority to allow a non-lawyer company executive to represent a corporation in a particular case is not the same as licensing that person as a lawyer.

[20] The Law Society Act preserves a self-regulated profession admitting candidates to the bar and regulating lawyers since 1797. Subsection 2(1), as amended in 2018, continued the Law Society of Upper Canada as the Law Society of Ontario. That masks the fact that the pre-2018 law also “continued” the pre-confederation Law Society of Upper Canada under the same name. Subsection 2(2) incorporated it as a corporation of “members,” without share capital. This entity confers licences to practice law under s. 27 and maintains a register under s. 27.1. Prior to the 21st-century reforms, the Law Society admitted members instead of conferring licences. Under s. 35(1) of the 20th-century Act, the Hearing Panel was the part of the Law Society with authority to revoke membership and to remove the former member’s name from the roll of solicitors.

[21] In contrast, s. 49.20.1(1) of the current Act “established” the Law Society Tribunal after the enactment of the Modernizing Regulation of the Legal Profession Act, 2013, S.O. 2013, c. 17. The Tribunal is not a corporation and not part of the Law Society. In matters involving lawyer misconduct, the Tribunal adjudicates applications brought by the Law Society under s. 34. Under s. 35, the Tribunal, not the Law Society, has the authority to revoke licences. The statutory tribunal model replaced the earlier corporate structure for hearing and ruling on discipline complaints. This 2013 reform was a contraction of Bar independence in that the legislature reassigned the Law Society’s corporate ability to remove members to a statutory tribunal entrusted with suspension, restriction, and revocation of licences.

[22] The distinction between the corporation of the Law Society and the statutory mandate of the Tribunal defined the conduct proceedings leading to Mr. Chijindu’s loss of his licence. In the proceeding, under s. 34(1) of the Act, the Law Society was the applicant and Mr. Chijindu was the respondent. An injunction ordering the Law Society to reinstate him is pointless because the Law Society has no jurisdiction over the Tribunal or over the former lawyer.

[23] Indeed, in the absence of an appellate decision overturning the revocation, the Tribunal itself cannot consider an application for reinstatement. The power to reinstate, under s. 49.42, applies only to suspensions and practice restrictions (italics added):

49.42 (1) If an order made under this Act suspended a licensee’s licence or restricted the manner in which a licensee may practise law or provide legal services, the licensee may apply to the Tribunal for an order of the Hearing Division discharging or varying the order to suspend or restrict on the basis of fresh evidence or a material change in circumstances. 2013, c. 17, s. 22 (1).

[24] Since neither the Law Society nor the Tribunal can reinstate Mr. Chijindu, the court cannot order either of them to do what they lack statutory authority to do. Mr. Chijindu’s path to reinstatement was limited to appeal or judicial review of the Tribunal’s decision, neither of which this court has the authority to hear. Nor is it within the jurisdiction of this court to opine whether he has been barred from rejoining the Bar forever. As a non-lawyer, perhaps he could later reapply for membership, subject to all licensure requirements including the good character requirement under s. 27(2) of the Act. But it this Superior Court application is unavailable to him as a means of curtailing that next journey.

[25] The court therefore cannot exercise any power or grant any remedy that does not entail stepping into appellate or judicial review roles allocated to the Divisional Court. The absence of a remedy in this court informs the Charter issue in the next section, in which I conclude s. 24(1) does not confer the court any special ability to interfere with the statutory decision path under the Act.

3. Section 24(1) of the Charter

[26] Mr. Chijindu argued that s. 24(1) of the Canadian Charter of Rights and Freedoms empowers this court to overturn the Tribunal’s revocation of his licence, or to craft a remedy to achieve the same effect. If this argument were true, it would vault provincial superior courts onto a perch over every appeal and judicial review of administrative decisions in Canada.

[27] The starting point for the analysis is the text of s. 24(1). If it does not apply, there is no point in delving into the s. 7 and s. 15 issues. It reads:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[28] Competent jurisdiction is defined by categories of persons, subject matter and orders sought. This means s. 24(1) does not create a right of appeal or bestow appellate powers on any court. It authorizes courts in cases properly before them to exercise remedial powers under the Charter: Mills v. The Queen, [1986] 1 SCR 863, at 960.

[29] Mr. Chijindu urged the court to adopt the proposition that the superior courts of Canada are the default courts of competent jurisdiction to adjudicate constitutional disputes between individuals and state actors. He relied on Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3, at para. 45; Farrell v. Attorney General of Canada, 2023 ONSC 1474, at paras. 212-18; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585, at para. 6; A.G. Can. v. Law Society of B.C., [1982] 2 SCR 307, at 328; and Canada (A.G.) v. McArthur, [2010] SCR 626, at para. 17. (He also argued the superior court has jurisdiction to cure administrative decisions obtained by fraud or discovery of new evidence. However, those instances only arise where judicial review is unavailable: Wilson v. The Queen, [1983] 2 S.C.R. 594, at 599-600.)

[30] A superior court has the authority to consider the constitutional validity of a statute or regulation even though that law specifically restricts curial review of administrative decisions or functions to another court. A superior court’s jurisdiction under s. 24(1) also extends to the award of damages or injunctive relief against a person or body making those decisions or exercising those functions. Such remedies are part of the superior courts’ constitutional legacy of the English Royal Courts of Justice and the courts of colonial Upper Canada: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 11(2).

[31] A superior court’s exercise of constitutional and inherited powers to grant Charter remedies does not, however, allow it to intrude into decision-making powers specifically allocated to other bodies. The constitutional guarantee of a court to hear Charter complaints defaults to the superior court only if there is no other court: Doucet-Boudreau, at para. 45. The superior court’s ability to wield blunt instruments such as striking down an unconstitutional statute does not permit it to insinuate itself into the statute and administer as an ersatz tribunal or statutory appellate body.

[32] In Law Society of B.C., at 327-28, the Supreme Court recited the illustration by Beetz J. in A.G. Can. v. Canard, [1976] 1 S.C.R. 170, that the superior courts’ traditional jurisdiction to adjudicate the constitutional validity of portions of a statute did not permit them to review a decision made by a government minister under the same statute. In McArthur, the Supreme Court upheld a prison inmate’s right to pursue an action for damages for Charter breaches, even though the Federal Court was the statutory forum for administrative review of the segregation orders. These decisions show how superior courts’ authority to strike down an entire regulatory infrastructure does not translate into power to perform the actual work. Mr. Chijindu seeks to reverse the Tribunal’s findings and penalties. This court has no authority to grant that remedy.

[33] The remedy-focused restrictions of the court’s general jurisdiction over parties and subject matter and of its status as the default interpreter of the Canadian constitution conform to the long arc of jurisprudence that the tribunal is the “court of competent jurisdiction” for the purpose of s. 24(1): R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765, at paras. 22 and 78-82. The Tribunal, or the Divisional Court on appeal, possess that jurisdictional competency: MacRae v. Rosa, 2023 ONSC 7208, at para. 22. He could have raised his s. 7 and s. 15 arguments at the Tribunal. The ability to raise the issues before the very forum dealing with his licence meant that the Tribunal was the court of competent jurisdiction.

[34] Accordingly, the court lacks jurisdiction to hear Mr. Chijindu’s Charter objections to the Tribunal decisions. After Mr. Chijindu exhausted all his appeal rights, the Tribunal itself ceased to have the power to reinstate him.

Law Society’s Other Arguments

[35] In addition to the Law Society’s argument that the court lacked jurisdiction, it urged the court to apply the doctrine of res judicata, also known as issue estoppel and cause of action estoppel precluding relitigation of settled disputes. It also submitted that the s. 7 Charter argument was doomed to fail, because the jurisprudence has established that professional licensing does not come within the constitutional guarantee of liberty or security of the person.

[36] I have carefully considered these arguments, but my ruling on jurisdiction precludes me from grounding my decision on them. Any attempt to recombine the genesis of Mr. Chijindu’s disbarment to fit the analytical framework for these arguments inevitably snap back to the original shape of the tribunal and appeals proceedings. If this court cannot hear Mr. Chijindu’s application, I have no role in opining about duplication of litigation or questions about the scope of s. 7.

[37] Accordingly, I am unable to come to any conclusions regarding the Law Society’s arguments beyond jurisdiction.

Result and Costs

[38] The Law Society’s motion is granted, and the application is dismissed.

[39] Counsel for the Law Society submitted a costs outline for the motion based on $18,760 as the monetized basis for its in-house counsel’s services. She stated that the partial indemnity assessment on this amount would be in the order of $12,000. Mr. Chijindu had no comments about the scale or quantum of costs.

[40] Tracing the trajectory of Mr. Chijindu’s disbarment and attempts to reverse it, I am mindful of the Tribunal’s findings that he had failed to express remorse and that his conduct demonstrated he was ungovernable. Just as I have explained the Superior Court cannot interfere with the Law Society or the Tribunal’s jurisdictions regarding the conduct complaints, I am not prepared to import the findings against him as evidence of procedural abuse. The costs of the proceeding are only to be informed by the proceeding.

[41] The irony of the underlying facts is that Mr. Chijindu seemed to have obtained a superior result for his overseas client in the fraud recovery matter. The court cannot ignore the tragedy illustrated by the contrast between the proud moment when the Law Society admitted him into the practice of law and the downward spiral leading to his expulsion. Although I have determined the Charter cannot come to his aid in this court, I believe he had a personal imperative to bring the application. Whether that motivation extended beyond self-interest is a factor in awarding or denying costs demands: Royal Bank of Canada v. Welton, at paras 7-8. In the overall arc of the litigation, it did not appear to me that Mr. Chijindu brought this Charter application to expose the systemic failings of the Law Society on the racial equality file. As he stated in his application, the Law Society has admitted to an ongoing need to root out discrimination.

[42] Fairness to Mr. Chijindu and to the profession need to be balanced in any award of costs: Boucher v. Public Accountants Council for the Province of Ontario, 71 OR (3d) 29, at para. 37. The Law Society’s legal expenses come out of general revenues for which all other active members contribute. There is no compelling reason to refuse to award costs.

[43] I will therefore award the Law Society costs on a partial indemnity basis but fixed in the amount of $12,000.

Akazaki J. Date: July 22, 2024