You know the background. Toronto paralegal Harry Kopyto is on trial facing professional capital punishment. The charge? Lacking “good character” to work as a paralegal. The real reason for the charge? Speaking truth to power for 35 years in Ontario courtrooms.
The latest skirmish took place on February 17th at Osgoode Hall. Kopyto wants disclosure of Law Society (LSUC) files to challenge its takeover of paralegals. The takeover is what got Kopyto in front of the three person Big Law panel in the first place. The panel is now on its third session. The first two days heard motions to remove Paul Dray, the Law Society’s “favourite son” paralegal from the Panel.
Who is Paul Dray? A cop and prosecutor for decades, he has been described as the Law Society’s “silver bullet”. He betrayed an Ontario-wide paralegal association he headed by pretending to be in favour of self-regulation and then leading the forced march into the Law Society. The group collapsed after he stabbed it in the back. He is also famous for his joyful declaration that “The War is over” made at the time that Big Law swallowed its paralegal competitors and jacked up the cost of legal services.
A biased Panel
For Kopyto, the war is not over. Paul Dray is now reincarnated as the Chair of the Paralegal Standing Committee of the LSUC appointed by Ontario’s Attorney General. Kopyto wants him to hand over his correspondence with the federal Competition Bureau, which has expressed its fear of the takeover impeding competition in a letter addressed to him. Now, how fair would it be to have Dray sit on a panel that will decide whether he has to release his own letters to Kopyto?
The chair of Kopyto’s panel is Carl Fleck. Is he a loyal voice for the LSUC’s inner sanctum? Is he a right-wing Conservative Party booster? Is he a man on a mission? All of the above…
Fleck based his decision rendered February 17th to keep Dray on board using every devious argument a slick big money litigation lawyer could find. In a transparent put-on display of hurt feelings, Fleck delivered a bruising decision that remarkably made no mention of Dray’s conflict of interest! He also ignored an almost identical case that favoured Kopyto and applied civil instead of criminal law cases in breach of numerous binding decisions.
A Panel that violates its own rules
As well, the law required Dray to give his own separate reasons for staying on the Panel before a final decision could be rendered. Big problem. It would have been impossible for Dray to avoid addressing the conflict if he had made his own separate decision. That’s why Fleck gave one set of reasons for all three panel members, taking the pressure off Dray. Nice try, except the procedure he followed was in breach of a Court of Appeal decision. In fact, it was opposite to the procedure he followed when Kopyto raised an initial challenge against Dray on the first hearing date on grounds of bias. To show he meant business, Fleck responded to Kopyto’s second challenge with a decision that accused Kopyto of victimizing Dray and ordering legal costs against Kopyto. To show his hostility to Kopyto, Fleck ordered him to pay the legal costs without allowing him to address the issue of costs first as the Panel was legally bound to do. It seems that the law doesn’t count for much when it comes to getting Kopyto.
Kopyto’s next hearing dates were scheduled for April 6th and 7th, at 9:30 a.m. at Osgoode Hall. Kopyto will focus on his right to full disclosure so far refused by the LSUC. This includes records that could overturn his controversial disbarment 20 years earlier. The LSUC has already admitted that the Ontario Legal Aid Plan paid the full amount of Kopyto’s billings when the Plan settled his subsequent accounts which it initially refused to pay when he was disbarred. No deprivation means no fraud.
Denial of exculpatory evidence
For those who don’t know, Kopyto’s licence was pulled in 1989 for allegedly over-billing Legal Aid in 1984-1986. Kopyto’s defence was that all the work he billed was done but he guessed at some of the details like dates and times of his phone calls and case preparation. One client who kept meticulous notes recorded almost the exact amount of preparation time that Kopyto billed with discrepancies only to the time and date. However, the Law Society scions want to snuff Kopyto out professionally and saw their opportunity. Kopyto had achieved a high profile for tweaking the nose of the legal establishment by establishing many precedents that benefited women, gays, tenants, workers and victims of police abuse. This did not sit well with the Bay Street barons and their legal handmaidens. They gathered the clan for a final showdown.
In a decision authored by Liberal Party bigwig bencher Allen Rock, who later ran for leadership of the federal Liberal Party, the Benchers “reinterpreted” his admission of negligence into a finding of civil fraud. However, this ruse was exposed in the first written dissent in the history of LSUC Convocation discipline hearings ― going back two centuries. In his lengthy, detailed and documented dissent, Bencher Tom Carey pointed out that there was no evidence whatsoever of dishonesty or fraud and all the evidence was of good character. Kopyto even challenged Attorney-General Ian Scott to charge him with fraud in a public letter. But it was too late. The fix was in. And the legal defenders of the status quo excommunicated one of their most consistent and fearless critics who only a few years earlier was found guilty of contempt (overturned on appeal) for famously telling a Globe reporter that the police and courts were stuck together with Krazy-glue.
Public regulation vs. predatory takeover
Kopyto favours regulation of paralegals under the joint control of the profession and the public. The LSUC takeover, however, meant privatizing a public function by placing unfranchised paralegals under the rule of a self-interested, competitive legal elite. The takeover, previously condemned by two independent public inquiries, destroyed any notion of neutrality or public accountability in the regulation of the profession. All done “in the public interest”, of course, to protect us from dishonest or incompetent paralegals.
Still, some of the more farsighted in the LSUC circle of elders are nervous. A Law Society benchers’ meeting blew up in December with reformers warning that the LSUC’s monopoly over legal representation conflicted with their role as a body elected only by lawyers who have their own distinct interest. It’s a problem that won’t go away. Private control of a public function is a recipe for disaster.
Furthermore, the Ontario government had scheduled a review of the LSUC takeover due in about two years. The LSUC is on message with its “All is well” campaign. It is desperately trying to legitimize its Paralegal Standing Committee by holding elections for its five paralegal positions from March 6 to the end of the month. The optics, however, are not good. Two thousand six hundred paralegals are invited to elect five paralegals to a Committee with eight non-paralegals on it, which only has power to make recommendations to a body elected exclusively by lawyers. What were they thinking!?
The public being victimized
The LSUC rationalizes the takeover by arguing that it is protecting the public. By putting a fox in charge of the henhouse, you say. For every paralegal horror story, under the LSUC’s watch, there are several more lawyer horror stories including wrongful convictions, phony court experts destroying peoples’ lives, etc. The courts are in crisis, massively overcrowded, unaffordable and fraught with institutional delays. Legal aid hobbles from crisis to crisis. Complaints against Ontario’s lawyers are fast approaching 10,000 yearly. Meanwhile the public suffers from the abandonment of their profession by an estimated 2,000 paralegals who refused to become fodder for the LSUC. The lawyers now enjoy a newfound monopoly over the preparation of wills, incorporations, leases, undefended divorces, simple real estate transactions and family court representation. Competitive pricing and choice has been replaced by a Big Law Monopoly. Furthermore, the scope of paralegal practice which determines what work they are allowed to do is set out in LSUC bylaws which can be shredded with a snap of the fingers by the eminences gris of the LSUC. Always acting, of course, in the public interest.
Reasons for hope
Kopyto’s challenge to the takeover is drawing growing interest. Dozens of his supporters have attended all the hearings. The weekly lawyers’ paper, the Law Times, has recently featured his campaign against the takeover.
As the cost of justice soars, legal rights become illusory. Kopyto’s constitutional challenge to the Law Society takeover can break the lawyers’ monopoly and restore a measure of access by the public to an increasingly unaffordable judicial system. Kopyto is fighting the good fight. But he is facing a well-oiled machine used to steamrolling over opposition. How can we not support him?
Kopyto needs our help. Check out his website at http://www.harrykopyto.ca. Plan on attending the April 6th (and 7th ) hearings. Spread the word by sending this update to your contacts. Write letters to the editor. With our solidarity, Kopyto can win.
Harry Kopyto Defence Committee