Kopyto files complaint against panel Chair Carl Fleck (Q.C.)

September 27, 2010

Sent by Fax: 947-7622

Complaints Department

Law Society of Upper Canada

Osgoode Hall

130 Queen Street West

Toronto, Ontario

Dear Sir/Madam:

Re: Carl Fleck, Q.C.

Please note that I wish to file a complaint against Carl Fleck, Q.C. a lawyer in private practice whose address is 102-704 Mara Street, Point Edward, Ontario N7V 1X4.

I am sure that you are aware that Mr. Carl Fleck is a senior member of the Ontario Bar, an experienced counsel who has appeared before the Supreme Court of Canada and other trial and appellate bodies and has decades of experience in administrative law and civil litigation.  In particular, he is familiar with the role of an adjudicator sitting in a quasi-judicial capacity because of his extensive experience as a Chair of various hearing panels under the Canadian Human Rights Act.  Accordingly, it goes without saying that he is undoubtedly aware of the fundamental importance of maintaining both an appearance of neutrality as well as actual neutrality when he sits as an adjudicator and in particular where he is a Chair of a hearing panel.

Regretfully, I must report to you that Mr. Fleck appears to have engaged conduct unbecoming a barrister and solicitor as he sat as Chair of a Tribunal hearing a motion brought by me in connection with an application to be permitted to be grandfathered as a paralegal.  Mr. Fleck contacted the Discipline Department of the Law Society charged with opposing my application for the purpose of assuring them that an adjournment requested by Discipline Counsel would be granted and also for the purpose of conferring with them on the procedure to be followed.

Given Mr. Fleck’s lengthy experience as an adjudicator and familiarity with appropriate judicial and quasi-judicial practice, it is astounding that he would unilaterally contact one party in a proceeding before him without the knowledge of the other party in order to make the communications that he did. Even more surprising is that Mr. Fleck assured the Discipline Department that he would have no difficulty in obtaining the adjournment although my position in the matter had not yet then been canvassed and Mr. Fleck had no idea what position I would take.

It is impossible to believe that Mr. Fleck was not aware that the appropriate procedure would have been to communicate to the neutral Tribunal Office which operates independently of both the Discipline Department and members of the paralegal and legal profession.  The Tribunal Office is the body through whom previous adjournments in my case and in every other scheduled case are arranged. The Tribunal Office is the body that ensures that both sides in a hearing are copied correspondence regarding procedural matters and through which communications between parties and the adjudicating body are filtered. The fact that Mr. Carl Fleck, who must be presumed to be intimately familiar with this fact, chose to ignore such procedure and engaged in a communication that I was not privy to with the opposing party committed an egregious breach of judicial decorum as well as conduct unbecoming a barrister and solicitor, especially somebody with Mr. Fleck’s sophistication and experience.

Even more astounding, as pointed out above, is that he assured the prosecution that they would obtain an adjournment without even consulting me.  This is a clear breach of the principle of natural justice entirely inconsistent with a judicial and quasi-judicial temper.

Such conduct, regarded in isolation, clearly constitutes a serious impropriety which calls into question his capacity as a barrister to sit in an adjudicative capacity.  However, Carl Fleck has engaged in a pattern of similar conduct which indicates his disregard for established legal procedure and hostility towards me. There have been four other incidents which have involved ordering costs against me without permitting me to address the issue, disregarding established procedure set by the Court of Appeal for rendering decisions on motions for recusal and other improprieties.  I enclose with this letter a copy of a Statement outlining these five incidents culminating in the telephone call to the Discipline Department made by Mr. Fleck on April 1, 2010.  His conduct to date clearly shows his determination to deny me fundamental rights and raises serious questions about why his conduct should not be the subject of a discipline hearing.

I was not fully aware of the contents of Mr. Fleck’s telephone communication of April 1, 2010 until a copy was forwarded to me by Discipline counsel, Susan J. Heakes by letter from her dated September 23, 2010.  I enclose what appears to be a transcript of his voicemail message left for Leslie Cameron, manager and senior counsel of discipline with the LSUC.

Please take whatever steps are necessary on an expedited basis to ensure that my complaint about the impropriety of Mr. Fleck’s conduct is dealt with expeditiously.  I continue to be a victim of his hostility towards me.

Yours truly,

Harry Kopyto

Encls.

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