COURT FILE NO.: 10-1605
DATE: 2011/06/15
SUPERIOR COURT OF JUSTICE
ONTARIO
DIVISIONAL COURT
WILSON, SWINTON AND LINHARES de SOUSA JJ.
BETWEEN:
MIREILLE SIMONE JOCELYNE MARIE LANDRY
Pierre Champagne/Mark Power, for the Applicant
Applicant
– and –
LAW SOCIETY OF UPPER CANADA, LAW SOCIETY HEARING PANEL
Paul Le Vay/Owen Rees for the Respondents
Respondents
– and –
REGROUPEMENT ÉTUDIANT DE COMMON LAW EN FRANÇAIS
François Larocque for the Intervenor Regroupement étudiant de common law en français
Intervenor
– and –
ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE L’ONTARIO
Julie Skinner for the Intervenor Association des juristes d’expression française de l’Ontario
Intervenor
HEARD AT OTTAWA:
May 9 and 10, 2011
Wilson J.
REASONS FOR JUDGEMENT
[1] Ms. Landry, the applicant, is seeking judicial review of the interlocutory decision of the Law Society Hearing Panel (the “Hearing Panel”) dated March 17, 2010 (the “decision”) on the grounds of violations of the principles of natural justice and the obligations of procedural fairness. The applicant is asking this Court to set aside the decision and direct a permanent stay of the application against the applicant in file no. LCNO/09.
[2] The applicant is also seeking orders directing the Hearing Panel and the Law Society of Upper Canada (the “Law Society”) to respect the language rights guaranteed by section 49.24 of the Law Society Act, L.S.O. 1990, c. L-8, and subsection 5(1) of the French Language Services Act, R.S.O. 1990, c. F.32, and in particular the right to receive the Hearing Panel’s reasons for decision in French after a hearing in French or a bilingual hearing, or the right to receive the reasons for decision in French and English simultaneously after a hearing in French or a bilingual hearing.
[3] The Law Society contends that this application for judicial review is premature. The Hearing Panel’s decision is an interlocutory decision. Because the applicant has not shown exceptional circumstances that could justify judicial review before the administrative proceeding has reached a final conclusion, the application should be dismissed as premature. In addition, after the conclusion of the proceeding before the Hearing Panel, the applicant must first exercise her right of appeal to the Law Society Appeal Panel.
[4] After hearing submissions on the question of whether the application is premature, the Court dismissed the application. The reasons for this decision follow.
Facts
[5] On January 14, 2009, the Law Society served a notice of application on Ms. Landry under section 34 of the Law Society Act, stating a number of allegations of professional misconduct (file no. LCNO/09).
[6] Before a date was set for the hearing of the application on the merits, the applicant filed a motion with the Hearing Panel seeking a permanent stay of the Law Society’s application in file no. LCNO/09. In her motion, the applicant argued that the Law Society’s conduct constituted an abuse of process and the delay of 45 months between the date of the complaint to the Law Society and the date when the application was served was unreasonable and abusive.
[7] The applicant exercised the language rights guaranteed to her by section 49.24 of the Law Society Act. That section provides:
A person who speaks French who is a party to a proceeding before the Hearing Panel may require that any hearing in the proceeding be heard by panelists who speak French.
[8] The motion was heard by the Law Society Hearing Panel on October 9, 2009, in Ottawa, before a three-member panel. The documents submitted by the two parties at the hearing were written in French and the hearing took place entirely in French.
[9] On March 17, 2010, the Hearing Panel dismissed Ms. Landry’s motion. The order was written in English and French, but the reasons were written in English only. The French translation of the reasons was provided to the applicant on April 30, 2010.
[10] The applicant alleges that after the hearing, the Hearing Panel considered a number of documents [TRANSLATION] “in private” that were not entered in evidence before or at the hearing of the motion and that the Panel violated the fundamental rights of participation guaranteed by the principles of natural justice and procedural fairness.
[11] The applicant alleges that the fact that the Hearing Panel considered those documents after the motion is an exceptional or extraordinary circumstance and intervention by this Court on judicial review of the interlocutory decision is therefore warranted.
[12] Under the heading “The Broader Context of the Handling of Complaints”, the decision of the Law Society Hearing Panel includes paragraphs 14 to 22 of its reasons for decision. In those paragraphs, the Hearing Panel considered the new documents, and in particular the Law Society’s 2005 Annual Report, the Law Society’s 2005 Financial Statements and specific information found on the Law Society’s internet site. The text of paragraphs 14 to 22 of the reasons for decision is attached and identified as “Appendix A”.
[13] The documents quoted in paragraphs 14 to 22 were never the subject of argument at the hearing, either by counsel for Ms. Landry or by counsel for the Law Society.
Natural Justice Issues
Is this application for judicial review premature?
General Principles
[14] The Hearing Panel’s decision to dismiss Ms. Landry’s motion for a permanent stay of the application relating to her conduct is an interlocutory decision.
[15] It is a well-settled rule of this Court that it will not exercise its right of judicial review in respect of an interlocutory matter, unless the circumstances are exceptional or extraordinary. In general, the Court discourages the interruption and fragmentation of an administrative proceeding that results from judicial review of interlocutory matters before the conclusion of the proceeding.
[16] In Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div. Ct.), Callaghan C.J. stated the following principles, at page 3:
This court has a discretion to exercise in matters of this nature. It can refuse to hear the merits of such an application if it considers it appropriate to do so. Where the application is brought prematurely, as alleged by the Attorney General in these proceedings, it has been the approach of the court to quash the application, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard ….
…For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.
[Emphasis added]
[17] In Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.), the Court of Appeal dismissed an appeal from a decision of the Divisional Court refusing judicial review of an interlocutory matter. In that case, the issue was one of procedural fairness.
[18] In Marler v. Law Society of Upper Canada, [2009] O.J. No. 654 (Div. Ct.), another proceeding against the Law Society where the applicant had sought a stay in an application for judicial review based on an interlocutory matter, Low. J. commented, at paragraph 8:
… [I]t is far from obvious that the Divisional Court would, at an interlocutory stage of the tribunal proceeding, interfere with the tribunal’s determination of the issue even where the allegation is one of reasonable apprehension of bias. The applicant would need to demonstrate exceptional circumstances to warrant the kind of fragmentation of the processes of administrative tribunals that would result from court interference in an interlocutory determination and a fortiori where the statute confers a right of appeal, as it does in this statute, to an appeal tribunal … .
[19] In Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, the Divisional Court considered the fundamental principle that intervention by the Divisional Court in an interlocutory decision must be limited to exceptional or extraordinary circumstances:
… But for this application, the hearing would likely have been concluded by now. I am not suggesting that this application was brought for purposes of delay, but delay has nevertheless been the result. This is not in the public interest and is exactly the reason for the long line of cases holding that such applications are premature and should not be entertained by the court.
[Emphasis added]
Does the consideration of the documents in paragraphs 14 to 22 constitute exceptional or extraordinary circumstances?
[20] The applicant submits that she has shown the existence of exceptional or extraordinary circumstances that justify her application for judicial review. She contends that the consideration of external documents by the Hearing Panel constituted a violation of the principles of natural justice and procedural fairness that taints the entire future proceeding, and those circumstances call for intervention by this Court and warrant a permanent stay in file no. LCNO/09.
[21] The Law Society admits that, in principle, the parties have the right to know the evidence that will be considered by the Hearing Panel and to have an opportunity to challenge that evidence, but submits that when the evidence in question is not part of the basis of the administrative tribunal’s decision, and rather relates to a collateral matter or a matter of context in a public document, the Court should not set aside the decision. The respondents argue that the documents that were considered in paragraphs 14 to 22 are collateral, are not relevant to the detailed reasons of the Hearing Panel in its analysis of the facts of this case, and are in the public domain. There was therefore no abuse that violates the principles of natural justice or the obligations of procedural fairness.
[22] At paragraph 26 of the decision in Ackerman, supra, Molloy J. stated:
There may well be situations in which an interlocutory ruling is so tainted by procedural unfairness and breaches of principles of natural justice that this court would appropriately intervene. I do not wish to rule that out. However, this case clearly does not fall into that category. The Divisional Court in Forestall did a thorough analysis of the content of the duty of fairness under s. 69(18) of the PSA and concluded that this was an administrative and procedural function requiring only “minimal rights of procedural fairness” including notice, appropriate disclosure and an opportunity to respond in writing.
[Emphasis added]
[23] The applicant submitted that there is a fundamental principle that requires the Hearing Panel to consider only the evidence presented by the parties:
To allow a tribunal to gather evidence outside the hearing would defeat any legal requirement that the tribunal hold hearings in the presence of the parties or in public. … it is a breach of the audi alteram partem principle for a decision-maker to base a decision on information that has not been disclosed to the party adversely affected or if it has been disclosed, done in such manner as not to give the parties a fair opportunity to rebut it.
(See: Brown and Evans, Judicial Review of Administrative Action in Canada, §12:1000)
[24] The applicant cited two decisions: Pfizer Co. Ltd. v. Deputy Minister of National Revenue, [1977] 1 S.C.R. 456, and Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.
[25] In Pfizer, the administrative tribunal had quoted and considered two scientific works in analyzing facts that had not been put in evidence or referred to by the parties at the hearing. Counsel for the appellant objected to that procedure. The Supreme Court of Canada concluded that the objection was well founded, at page 463:
While the Board is authorized by statute to obtain information otherwise than under the sanction of an oath or affirmation … this does not authorize it to depart from the rules of natural justice. It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.
[26] In Kane, at the conclusion of the hearing, the Board members spoke with and directed questions to the University President, who was a witness before the Board, in the absence of the parties, before giving their decision. The Supreme Court of Canada again explained, at page 1115, that an administrative tribunal may not obtain evidence privately between the end of the hearing and the reaching of decision “without notifying the parties thereafter of the advice or information received, so as to give the parties an opportunity of having a further hearing if need be, or, at any rate, commenting on the information and making their submissions thereon”.
[27] It is our opinion that Pfizer and Kane, supra, may be easily distinguished from the facts and circumstances of the Hearing Panel’s decision. In both cases, the tribunals did research and gathered evidence in private that was directly relevant to the issues and to their analysis of the facts.
[28] Ontario (Ministry of the Environment & Energy) v. 724597 Ontario Inc., (1995) O.R. (3d) 423 (Div. Ct.) [Ontario (Ministry of the Environment)], at paragraphs 1820 (Q.L.), and Regina v. Schiff et al, [1970] 3 R.J.O. 476 (C.A.), at paragraph 6 (Q.L.), cited by the respondents, are more relevant.
[29] In Ontario (Ministry of the Environment & Energy), supra, the Divisional Court stated that the mere fact of an administrative tribunal referring to publications of which it is aware, that are within its jurisdiction and that relate to the matters in issue does not violate procedural fairness even if the parties did not present the publications at the hearing:
I am not prepared to hold that a denial of natural justice occurs whenever a tribunal refers with approval to a decision or article supporting its decision that was not mentioned in argument before the tribunal. A tribunal is entitled to use its own knowledge and expertise in making its decisions, without limiting itself to matters referred to in the submissions made by the parties appearing before it. Such knowledge and expertise may include an awareness of current publications relevant to the issues before the tribunal.
[30] On its face, the Law Society’s 2005 Annual Report is a public document, prepared by the Law Society. It is therefore an official source that the Hearing Panel has the authority to consider without its doing so resulting in a violation of procedural fairness.
[31] Nonetheless, in this case, the content of paragraphs 14 to 22 includes general information available on the Law Society’s website concerning the process followed by the Law Society to respond to public complaints. The Hearing Panel quoted the statistics for 2005, the year the complaint was made, against the applicant.
[32] This judgment must not be interpreted as a prohibition or a refusal to intervene in all cases that involve an interlocutory decision. In some exceptional situations, where the effect of an interlocutory decision made in violation of the rules of natural justice or procedural fairness could have an injurious effect on the subsequent proceedings, the Court will be justified in intervening to prevent the parties’ rights being compromised, for example.
[33] That is not the case here. Even if there were violations of the principles of natural justice and procedural fairness (which we are not deciding), we are of the opinion that they do not constitute an abuse such as would taint the entire Hearing Panel process.
[34] The only conclusion, with the exception of the general facts set out in paragraphs 14 to 21, is stated in paragraph 22: “Having regard to the funds allocated and the procedures in place, it is clear that significant amounts of time, effort and resources are devoted to the resolution and/or prosecution of complaints received by the Society.” That general comment applies to all complaints received by the Law Society.
[35] At pages 15 to 20 of its decision, paragraphs 23 to 106, the Hearing Panel analyzed the facts in file no. LCNO/09 precisely and in detail and applied the legal principles set out in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 and in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. It considered the interests of the applicant and the public. The Hearing Panel concluded that the delay was not so long that it constituted an abuse of process that warranted a stay.
[36] At first blush, we are of the opinion that the observations found in paragraphs 14 to 22 are collateral to the Panel’s decision. The Hearing Panel’s consideration of those facts in a general context was not directly relevant to the detailed analysis of the facts in the Hearing Panel’s decision. The content and observations in paragraph 22 are very general and of dubious relevance in this application. Accordingly, the Court exercises its discretion not to allow the application for judicial review until the internal process before the Law Society is concluded.
Alternative Remedy Available
[37] It is a fundamental principle that this Court must respect and support administrative schemes. When the legislature creates an appropriate appeal route, the Court must exercise its discretion to refuse to allow an application for judicial review. In Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at page 592 [593-Tr.], the Supreme Court of Canada stated: “The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right.” The applicant bases her application for judicial review on the fact that she has no interlocutory appeal to the Law Society Appeal Panel. Rule 15.01 of the Law Society’s Rules of Practice and Procedure provides:
15.01 Subject to the Act, there is no appeal from a final interlocutory order of the Hearing Panel other than an interlocutory order suspending a licensee’s licence or restricting the manner in which a licensee may practise law or in which a licensee may provide legal services.
[38] The Law Society contends that the applicant is trying to do indirectly, by way of judicial review, what she cannot do directly by way of appeal at the interlocutory stage.
[39] At the end of the hearing, the applicant may appeal to the Law Society Appeal Panel “on any grounds” (s. 49.33). The Law Society Appeal Panel “may determine any question of fact or law that arises in a proceeding before it” (s. 49.35). When the Law Society Appeal Panel allows an appeal, it may “make any order or decision that ought to or could have been made by the Hearing Panel … appealed from” or “order a new hearing before the Hearing Panel, in the case of an appeal from a decision or order of the Hearing Panel” (s. 49.55 [49.35-Tr.] (2)(a) and (b)). The Appeal Panel may propose a remedy, if appropriate.
[40] The Appeal Panel has jurisdiction to determine procedural fairness and language rights issues. The applicant will have an opportunity to raise procedural fairness and language rights issues in an appeal from the final judgment of the Hearing Panel.
[41] In its recent decision in Toth Equity Limited v. Ottawa (City), 2011 ONCA 372 (CanLII), at paragraphs 33 to 35, the Court of Appeal affirmed the important principle that the administrative process must be respected.
[42] The applicant may appeal the decision of the Appeal Panel to the Divisional Court “on any grounds” (s. 49.39) (s. 49.38(b)). The applicant is therefore entitled to two levels of appeal, including to this Court.
[43] However, the applicant must respect the choice made by the legislature. The purpose of Rule 15.01 is the same as the purpose of the rule that applies to premature applications for judicial review, cited supra: to avoid delaying the administrative process and wasting administrative resources.
[44] For these reasons, we are of the opinion that this application for judicial review of the interlocutory decision is premature. The applicant has not shown that there are exceptional or extraordinary circumstances, and accordingly this Court must not exercise its discretion to intervene.
Language Issues
[45] Mr. Champagne admitted at the hearing before us that the important language issues are not relevant to the issue of whether the application is premature, but he asked this Court to deal with the language issues even though consideration of the other natural justice issues is premature.
[46] At the hearing, the intervenors took the same position as Mr. Champagne.
[47] Section 49.24 of the Law Society Act confirms that a party who speaks French may require that any hearing before the Hearing Panel be held before members who speak French:
French-speaking panellists
49.24 (1) A person who speaks French who is a party to a proceeding before the Hearing Panel may require that any hearing in the proceeding be heard by panelists who speak French. 1998, c. 21, s. 21.
(2) Repealed: 2006, c. 21, Sched. C, s. 51.
[48] The applicant exercised the language rights guaranteed to her by section 49.24 of the Law Society Act. The hearing was conducted entirely in French. However, the applicant received the reasons for decision in English and a French translation six weeks later.
[49] The Law Society admits that releasing the reasons in English before the French translation was available does not comply with the spirit of the legislation providing for a hearing in French, which is found in section 49.24 of the Law Society Act.
[50] The Law Society denies that the Hearing Panel has an obligation to write reasons in French in a proceeding conducted in French under section 49.24 of the Act, provided that the reasons are translated into French simultaneously. The new Rule 15 of the Law Society Act [Rules of Practice and Procedure-Tr.] expressly provides for this.
[51] In the circumstances, when the Hearing Panel writes its reasons in English in a proceeding that was conducted in French, the Law Society admits that the reasons in English and the French translation should ordinarily be released at the same time.
[52] The fact that six weeks passed before the applicant received the French translation of the reasons shows a lack of respect for language rights and a lack of sensitivity that are distressing.
[53] Although the Law Society’s conduct was regrettable, the Divisional Court clearly has no power, on an application for judicial review, to award any payment either as punitive damages or as compensatory damages, as requested by the applicant.
[54] We are of the opinion that all of the issues are premature, including the language issues.
[55] The Appeal Panel has jurisdiction to deal with procedural fairness and language rights issues. The applicant will have an opportunity to raise these issues in the appeal from the final judgment of the Hearing Panel.
[56] Mr. Larocque, for the intervenor Regroupement étudiant de common law en français, argued that the language issues are not premature and that he had no confidence that the Appeal Panel would be able to deal with the language issues impartially. Accordingly, in his submission, this Court must decide the language issues now.
[57] The intervenors’ expectations raise the issue of the role of an intervenor.
[58] An intervenor’s role is not the same as a party’s. The role of the intervenor is not to expand on or alter the issues as defined by the parties. An intervenor is present as “a friend of the court” to assist and to bring a different perspective to the issues, in the public interest. It is not the intervenor’s role to interfere in the cause between the parties or in the instructions given by the Court.
[59] The intervenors have requested a determination of collateral issues, which is not necessary in order to dispose of this matter, in particular the question of the application of the French Language Services Act, which raises the issue of whether the Law Society is a “government agency” or “institution of the Legislature” within the meaning of section 1 of the French Language Services Act.
[60] We are of the opinion that all of the issues raised by the applicant and the intervenors are premature. In the circumstances, an intervenor has nothing to add, even on matters of public importance.
[61] These issues must be considered and determined after file no. LCNO/09 against the applicant is completed by the Appeal Panel before this Court becomes involved in this case.
[62] For these reasons, the application is dismissed as premature.
[63] After the hearing of the application concluded, we heard argument on costs. The applicant will pay the respondents costs in the amount of $5,000, including HST.
Wilson J.
Swinton J.
Linhares de Sousa J.
Released: June 15, 2011
CITATION: Landry v. Law Society of Upper Canada, Law Society Hearing Panel, 2011 ONSC 2947
COURT FILE NO.: 10-1605
DATE: 2011/06/15
| SUPERIOR COURT OF JUSTICE
ONTARIO DIVISIONAL COURT WILSON, SWINTON AND LINHARES de SOUSA JJ. BETWEEN: MIREILLE SIMONE JOCELYNE MARIE LANDRY Applicant – and – LAW SOCIETY OF UPPER CANADA, LAW SOCIETY HEARING PANEL Respondents – and –
REGROUPEMENT ÉTUDIANT DE COMMON LAW EN FRANÇAIS Intervenor – and –
ASSOCIATION DES JURISTES D’EXPRESSION FRANÇAISE DE L’ONTARIO Intervenor
REASONS FOR JUDGMENT
|
Released: June 15, 2011
APPENDIX “A”
THE BROADER CONTEXT OF THE HANDLING OF COMPLAINTS
[14] In order to ensure a complete record, the chair of the Hearing Panel invited Society counsel to elaborate on the different functions within the Professional Regulation Division of the Society, as this case involves complaints handled at different times by different branches or departments within the Society.
[15] The Society’s Annual Reports and Financial Statements are a matter of public record (http://www.lsuc.on.ca/news/b/reports/annualreports/). The Society’s process for handling inquiries and complaints is set forth on its website. The Society is charged with supervising the professional activities of its approximately 38,000 members. This aspect of its mandate has been characterized as a form of “consumer protection”; to wit, “As a public body with a public interest mandate, the Law Society’s first and foremost responsibility as regulator of Ontario’s legal profession is consumer protection.” (2005 Annual Report at p. 23).
[16] The 2005 (the year in which the subject complainant first wrote to the Society) Financial Statements disclose that the Society had a total budget of $57,219,000, with $11,990,000 or 21% of its budget devoted to Professional Regulation. Professional Regulation includes Complaints Resolutions, Investigations and Discipline (Society 2005 Financial Statement, p. 7). As the Society is funded by its own members, this translates into an average contribution towards consumer protection of $326 in 2005 from every lawyer in Ontario, the vast majority of whom never become engaged in the Society’s discipline process. This contribution relates only to professional conduct matters. It does not include the premiums lawyers pay for professional negligence insurance.
[17] When an inquiry or complaint is received by the Society, it is first handled by the Intake staff. Their role is to weed out inapplicable matters, to identify any regulatory issues revealed by an incoming inquiry or complaint, to ensure that a complainant has provided adequate documentation to support any allegations of misconduct, and then to stream the matter to the appropriate department. Intake has an important case management function in determining the approach that will best serve the interested parties.
[18] The 2005 Annual Report discloses that there were 8,227 complaints received by the Society’s Client Service Centre in 2005. Of that total, Intake determined that 3,361 were outside the Society’s mandate and 4,866 were within the mandate. Of that latter total, Intake expeditiously dealt with and closed 2,131 of them. Another 1,961 were referred to Complaints Resolution, 722 were referred to Investigations, and the remaining 52 were referred to other departments such as Trustee Services (2005 Annual Report pp. 23-25).
[19] The role of the Complaints Resolution Department is to deal with less serious breaches of the Rules of Professional Conduct, and to seek authorization for disciplinary proceedings where necessary. Complaints Resolution uses a mediation / conciliatory approach and relies on early and direct intervention in an effort to secure prompt resolutions on a co-operative basis. As Complaints Resolution handles the largest volume – about 40% – of complaints, this approach benefits those concerned in many cases by defusing what may simply be instances of misunderstanding or intransigence, as opposed to misconduct (2005 Annual Report p. 25).
[20] Thus, not all complaints suggestive of misconduct will be immediately referred to the Investigation and Discipline Departments. Time and effort may be invested in resolving concerns with the prospect that, through reconciliation or satisfaction, the complainant’s concerns will be appropriately addressed and no further action will be needed. Complaints that should be escalated are escalated to the Investigation and Discipline Departments and handled from there.
[21] Of the matters referred to Investigations, some are closed without further escalation, and some are escalated to the Discipline Department. The Proceedings Authorization Committee, a committee of elected and lay benchers, determines whether a conduct application should be issued.
[22] Having regard to the funds allocated and the procedures in place, it is clear that significant amounts of time, effort and resources are devoted to the resolution and/or prosecution of complaints received by the Society.