LSUC PANEL OUT FOR BLOOD

The Law Society (LSUC) has set Tuesday September 28th and Thursday September 30, 2010 as two new hearing dates for a motion for disclosure and directions brought by Kopyto as part of his “good character” hearing.  The ostensible purpose of the “good character” hearing is for a panel, acting on behalf of the Law Society, to decide whether Kopyto has the good character needed to continue working as a paralegal under the 2006 Law Society Act amendments. These amendments have insulated high lawyers’ fees from downward pressure from their competitors by placing paralegals under the control of the legal profession (much like putting a fox in charge of making rules for the henhouse.)  Kopyto has been fighting back by bringing a motion seeking disclosure of LSUC records to show that the LSUC breached the federal Competition Act by taking over control of its competition in the paralegal profession and is now abusing its powers by drastically restricting its scope of practice.

The hearings for the disclosure motion are entering a critical stage.  The three-person panel was set up only for the purpose of dealing with Kopyto’s motion for disclosure, for setting a timetable for various jurisdictional and constitutional issues he  wanted to bring, and for challenging the constitutionality of the LSUC’s disclosure rules.  However, it is now engaged in a maneuver to expedite his “good character” hearing on the merits, by simply ignoring his request for disclosure.    In doing so, the Panel is demolishing the limited mandate that brought the motion Panel into being.  It has never been more important for those who want to keep Kopyto working in the legal system to attend the hearings, especially on Tuesday September 28, 2010 and to provide public oversight over the tricky maneuvers that the disclosure motion panel is engaged in, in its efforts to take over Kopyto’s “good character” hearing on its merits which it has no authority or mandate to do.

The “good character” proceedings were initiated June 15, 2009 as part of Kopyto’s grandfathering application to continue working as a paralegal.  At that time, the Law Society prosecutors decided that Kopyto did not have the good character needed to continue working as a paralegal under the 2006 Law Society Act amendments which placed paralegals under the control of the legal profession.  That’s when Kopyto brought the motion which was authorized by the Proceedings Management Committee (PMC) to have the Law Society provide him with disclosure and other related relief.  The PMC referred his motion to the motion Panel that now wants to transform itself into a trial Panel.

Kopyto has appeared on three separate days before that motion panel.  It was only after the Panel made a decision on disclosure and such disclosure was provided that the LSUC could assign a new hearing panel that would deal with the actual merits of the charges against him and his other legal objections.

But the panel that was set up only to deal with Kopyto’s disclosure motion has its own agenda. Inspired with a spirit of manifest destiny to keep Kopyto out of the world of law, the three-person panel chaired by LSUC insider, tricky Carl Fleck, has targeted Kopyto for professional capital punishment for speaking truth to power in the courts since being called to the Ontario Bar in 1974 and disbarred on trumped-up charges in 1989.  From the beginning, the Fleck panel has questioned its limited jurisdiction to respond to Kopyto’s motion and has also engaged in a series of decisions and actions that has undermined any suggestion that Kopyto could get any kind of a fair hearing from it on any matter.  It is clear that this panel is determined to deny Kopyto the documents and/or other records that the LSUC has refused to provide and which he needs to challenge the LSUC’s takeover of paralegals.

During the first three days of hearings scattered from October, 2009 to March, 2010, the motion Panel flagrantly breached various principles of fairness and showed its bias against Harry in its efforts to block him from getting the disclosure that he is seeking.

Last year, on October 26, 2009, it refused Kopyto’s motion to have Paul Dray resign from the three-person panel.  He argued that Paul Dray’s background as a cop for Peel Regional Police and subsequently as head of a company that prosecuted provincial offences in Peel Region placed him in a biased position against Kopyto whose lengthy legal history has focused on exposing police and prosecutorial abuse.    In response to Kopyto’s request that Dray quit the Panel on grounds of perception of bias, Paul Dray made a personal statement refusing to resign. Fleck, along with the third committee member, gave their own separate decision backing him up.  As a result, Kopyto will now be judged by a well-groomed cop/prosecutor whose whole career was built on unquestioning loyalty to the legal establishment.  He continued to serve as its loyal lapdog by being the public paralegal face for the takeover of paralegals by the legal profession for which he was recently rewarded by being crowned as a full Bencher (director) of the LSUC.

At the second hearing date on February 17, 2010, Kopyto once again sought Dray’s recusal.  He argued this time that Dray was in a conflict of interest position because Dray would have to judge whether to release to Kopyto his own personal correspondence with the Competition Bureau. The Bureau had written to Dray expressing its concern that the LSUC would use its powers to eliminate paralegals as a competing profession by limiting their scope of practice. This is exactly what happened!

Kopyto has already made it clear in his documentation that he, in his defence, would argue that the takeover by the legal profession of paralegals reduced competition, made justice less accessible, was in breach of the Competition Act and therefore the takeover was unlawful.

The Panel once again rebuffed Kopyto.  But this time, in doing so, it brazenly breached the mandatory rule followed by them on October 26th by ignoring Dray’s legal obligation to hand down his own personal decision with respect to the challenge to his remaining on the panel.  Instead, Fleck delivered the decision on behalf of all three including Dray. Fleck’s action deflected embarrassing attention away from Dray who otherwise would have had to personally explain why he wanted to be Harry’s judge while hiding his own letters from Harry and from public disclosure.  His personal conflict would have been impossible to masquerade but for Fleck’s deft maneuver.  However, Fleck’s decision to deliver one decision for the entire Panel breached a direction of the Court of Appeal which only accords individual panel members the right to indicate whether they would individually continue on the panel ― not to act as a Panel in deciding each other’s continuance. The Panel’s dismissive attitude to a law they accepted as binding on them in the first motion shows how shamelessly the Panel is prepared to go in setting aside the law in order to gun Kopyto down.

Fleck also muddied the waters by suggesting that Kopyto had already argued that Dray was in a conflict of interest when he accused him of bias because of his police connections during the first motion.  Although Kopyto did briefly mention Dray’s conflict of interest, his comments were made in reply to the Prosecutor’s presentation after all the main submissions were made and he never mentioned the issue of Dray’s Competition Bureau correspondence which he only found out about later.  Dray’s conflict of interest in deciding to rule on releasing his own correspondence did not form any of the grounds for Harry’s first motion of bias, was never mentioned in his or the LSUC’s prosecutor’s main presentation; nor was Dray’s conflict addressed in the earlier decisions of the Panel members.

In further violation of the law, the Panel added injury to insult when it also awarded costs against Kopyto for daring to bring his second motion.  Moreover, it denied him the right to address the issue of costs!  Kopyto never had a chance to argue against being financially penalized for challenging Dray.  It is a fundamental right under the rules of natural justice to allow both opposing parties to make submissions on costs awards.  The uninhibited way in which the Panel dispensed with even the appearance of fairness shows how deeply committed this three-person posse is to facilitate Kopyto’s professional hanging.

Following the February 17, 2010 motion hearing, on March 3rd, Kopyto received an e-mail from Carl Fleck ordering him to file voluminous records and factums by March 24, 2010 on each and every one of his remaining issues including various constitutional challenges that Kopyto announced he was bringing.  In other words, the Panel decided to ignore its limited jurisdiction as a motions Panel to provide directions on disclosure issues ― that is; provide a timetable and define the method of proceeding to hear the substantive motions.  By fiat, Fleck and Company chose to authorize themselves to hear Kopyto’s argumentation on the merits and all preliminary matters without deigning to provide direction as requested in Kopyto’s Notice of Motion.  They did so without even considering his request for disclosure that he needed in connection with the various legal challenges that it ordered him to bring by March 24th thereby effectively but indirectly denying him such disclosure.  How sneaky can you get?

This decision to transform itself into a trial court from a motion court through what appeared to be an innocuous procedural e-mail is a tribute to Fleck’s craftiness honed over decades as a big money insurance lawyer in the Sarnia area.  Had Fleck given Kopyto the opportunity to address the issue at the hearing two weeks earlier, Kopyto’s input and protests would have exposed the Panel’s ruse.  Moreover, Fleck’s e-mail actually gave Kopyto less then one week to prepare the voluminous and complex documentation involving the various constitutional and jurisdictional challenges that he is planning on making ― an impossible task as Fleck must have known given that Kopyto’s documentation had to be served on the provincial and federal governments 15 days earlier (by March 9th) in order to comply with an obligation to give notice of the constitutional issues raised by him.  The Panel’s unilateral procedural deadline could not have been complied with in only six days.  This showed once again the Panel’s brazen disregard for the principles of fairness in dealing with Kopyto.

Finally, in April, Carl Fleck telephoned Kopyto’s prosecutors, the LSUC Discipline Department, without Harry’s knowledge.  Although the contact concerned a procedural matter, Fleck, as Kopyto’s Judge, obviously knew that the LSUC’s neutral Tribunal Office dealt with all administrative matters and not the Discipline Department.  It shows how high a comfort level Fleck has with the Discipline Department prosecuting Kopyto who is not likely sitting at his phone anticipating getting such calls from Fleck.  As it turned out, Mr. Fleck’s flagrant phone call to Kopyto’s prosecutors was not responded to by the prosecutors as the communication was clearly inappropriate and constituted an impropriety as well as breaching Rule 5 of the LSUC Rules of Procedure.  How can Fleck be a fair judge if he contacts your opposition behind your back?

The scheduled LSUC hearings come in the midst of a major cosmetic remake of its public image by the LSUC.  Convocation recently elected a female treasurer (chair) for the third time since the 1700s(!).  In an effort to legitimize the LSUC takeover of paralegals and to camouflage that they are “non-voting” members of the LSUC,  elections were held which ended this April for five positions on the administrative Paralegal Standing Committee. Even on its “own” Committee, Paralegals are a minority of the 13 members, 8 of which are reserved for lawyers and non-paralegals. The voting attracted only 831 ballots from close to 3,000 paralegals.  The Committee has no legislative power but merely implements policies set by Benchers elected by lawyers.  Most paralegals were aghast at this charade of democracy.

The LSUC continues to be on the defensive. The Legal Aid underfunding crisis worsens as even Crown Prosecutors call for higher tariff rates for defence counsel in order to maintain at least the appearance of credibility of the criminal justice system. The majority of civil claims filed in Ontario’s Superior Court are not even defended, largely because of soaring legal fees.  Ironically, a motion by 10 paralegals at the LSUC’s Annual Meeting this spring seeking to expand paralegals’ scope of practice to restore areas previously performed by paralegals was withdrawn at the last minute. Although it is not clear why it was withdrawn, the fact that paralegals did not even have the right to vote at the meeting overwhelmingly attended by lawyers must have created a sense of hopelessness and fear of retribution for such an unprecedented move.

Kopyto’s appearance before the Law Society on Tuesday September 28th and Thursday September 30, 2010 comes at a time of ongoing unresolved crises for the LSUC.  A fierce critic in their own ranks is the last thing the LSUC wants.  If the Law Society sees itself as an immovable object, Kopyto is as close as you can get to an unstoppable force.  The legal system is out to squelch him.  The likelihood of the LSUC treating Harry fairly is directly proportional to as many people as possible being present to ensure that justice is done at the next hearing dates. Kopyto is not prepared to allow the panel to deny him his fundamental rights.  He is prepared to do whatever is necessary in order to stop tricky Carl Fleck and his sidekicks from continuing what is now clearly a kangaroo court.

Kopyto will be challenging the jurisdiction of the panel to continue with the motion against him on September 28, 2010.  Although the law is on his side, the panel has obviously made up its mind that the law doesn’t matter when it comes to targeting Kopyto for professional assassination. This is why it is critical that everyone attend the hearings that are scheduled to continue in September.   See you on Tuesday September 28th and Thursday September 30th, 2010 at 9:30 a.m. at Osgoode Hall, Museum Room.  The battle has been joined.

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