Why Kopyto abandoned his motion challenging Law Society disclosure rules

File No: PLC14/09

THE LAW SOCIETY OF UPPER CANADA

IN THE MATTER OF the Law Society Act;

AND IN THE MATTER OF Harry Kopyto, of the

City of Toronto, a paralegal licensing applicant

of the Law Society

STATEMENT OF REASONS FOR ABANDONMENT OF MOTION

When I last appeared before you on February 17, 2010, I was in the midst of advancing various arguments in support of my constitutional challenge to various Law Society disclosure rules.  However after reviewing the manner in which this Panel has conducted itself with the various issues that I have raised and in particular, how this Panel has breached its own fundamental rules of procedure, I regret to say that I am left no choice but to abandon my motion and my constitutional challenge.

There are five procedural and/or substantive decisions that this Panel has made that lead me to this unhappy conclusion.  I will deal with them chronologically.

The first reason involves the Panel’s decision to flagrantly breach the mandatory protocol established by the SOS case [SOS – Save Our St. Clair Inc. v Toronto (City), 2005 CanLII 40558 and 2005 CanLII 40559 (ON S.C.D.C.)].  This procedure required Mr. Paul Dray as a Member of the Panel whose neutrality was being questioned, to provide oral reasons for his decision on my motion for recusal  and then for the remaining Panel Members either jointly or separately to provide their oral reasons for either concurring with the challenged Panel Member and remaining on the Panel or withdrawing from the Panel if they disagreed with the decision of the challenged Panel Member, Mr. Dray.

Carl E. Fleck, Q.C., Chair of the Panel, delivered reasons for the decision on the motion for recusal dated February 17, 2010 on behalf of all the Panel Members including Mr. W. Paul Dray.  The failure of this Panel to follow the mandatory procedure established by the Ontario Court of Appeal in the SOS case is not merely a procedural oversight or inadvertent error.  The Panel was well aware of the procedure that had to be followed.  This is apparent from an earlier decision challenging Mr. W. Paul Dray’s neutrality heard and rejected on October 26, 2009.  On that occasion, Mr. W. Paul Dray provided his own separate oral reasons for the decision on this first motion for recusal heard on October 26, 2009. The decision of the two remaining Panel Members, Sarah B. Walker and Carl E. Fleck were both given by Carl E. Fleck.  The decision to adapt this procedure following submissions on the procedure to be followed made by all counsel on October 26, 2009.  At that time, the lawyer representing the Law Society of Upper Canada, as well as I, agreed through duty counsel that the proper procedure to be followed was that established by the SOS case.

The Panel itself explicitly agreed to follow the protocol established by SOS.  This was clear from the fact that Mr. W. Paul Dray presented his decision first separately. This was also acknowledged explicitly by the remaining two Panel members in paragraph 21 of the decision delivered by Mr. Dray in which he specifically refers to using the SOS case for following the protocol that he acknowledged was advanced by both counsel together in deciding this matter.  Therefore, the Panel was well aware when it dealt with the second recusal motion advanced on December 21, 2009 and denied on February 17, 2010 that there was a mandatory procedure that it had to follow before it could make a decision on a challenge of a Panel Member on grounds of bias.

The decision of the Panel as a whole not to follow the same procedure with respect to the second motion for recusal that it followed with respect to the first motion for recusal was clearly arbitrary and on its own raises an issue as to why the Panel would consciously ignore established mandatory procedure which it initially followed and subsequently ignored in its dealings with me.  It should be noted that there were actual facts unknown to me at the time that I advanced the first recusal motion on December 21, 2009, that I became aware of thereafter and included in my second motion.  In particular, this evidence was an exhibit in my affidavit in support of my second motion for recusal. That exhibit was correspondence from Richard Taylor, a Deputy Commissioner of the Federal Competition Bureau dated July 25, 2007 addressed to Mr. W. Paul Dray, the very same person who was now sitting in judgment of me.  The essence of my submission with respect to my second challenge of Mr. W. Paul Dray was that there would be an appearance of bias if he were to be placed in a position of determining whether his own personal correspondence and any reply to Mr. Taylor would be released to me.  The applicable law advanced by me included an uncontradicted case that  held that in such circumstances, it was clear that a conflict of interest arises.  If asked to address his conflict personally, Mr. Dray could not avoid dealing with this issue which Mr. Fleck deftly was able to deflect by refusing to rule on it.

The claim for disclosure of Mr. Dray’s correspondence with the Federal Competition Bureau and all documents relating to it was not made by me disingenuously in order to have him withdraw from the Panel. On the contrary, it has been my position throughout that the Law Society’s assumption of governance over paralegals is a breach of the Competition Act and an “anti-competitive act” as defined by s. 78(1) of that Act.  The correspondence between Mr. Dray and Mr. Taylor from the Competition Bureau was therefore directly relevant to the motion I had given notice of bringing that the Panel was without jurisdiction because the LSUC takeover of paralegals by the Law Society was in restraint of trade and therefore unlawful.

In the 38 paragraphs in the oral reasons for the decision on the second motion for recusal, Mr. Carl E. Fleck for the Panel in its entirety concedes that the second motion for recusal included an allegation that Mr. Dray was in a personal conflict of interest because of his correspondence with Mr. Taylor and because I would be asking him to produce all his correspondence with Mr. Taylor  as a matter of disclosure [paragraphs 11 and 13]. However, Mr. Fleck does his best not to address this specific allegation anywhere in the reasons nor did he distinguish Goderich the case heavily relied upon by me in my submissions whose facts were virtually identical to those in my case.  In fact, the Panel further ignores cases which it itself refers to in its decision e.g. [Danyluk v Ainsworth Technologies Inc., [2001] S.C.J. No. 46] in another context.

The Panel dismissed the second recusal motion on the basis that the issues had already been decided or could have been decided in the first recusal motion.  Danyluk however requires the Panel to consider, notwithstanding that fact, if it should still exercise its discretion by permitting the motion to proceed which would usually be the case because there is an issue of fundamental importance or procedural fairness such as neutrality involved.  The Panel however refused to address if it should exercise its discretionary powers in determining whether to decide whether Mr. Dray should be disqualified from deciding to release his own correspondence as part of the Law Society’s disclosure obligations.  The Panel’s failure to consider the specific conflict that Mr. Dray found himself in because of his correspondence constitutes the second reason why I have concerns about the willingness or capacity of the Panel to treat me fairly and in a neutral and unbiased manner.

My concern is heightened even more by the decision of this Panel unanimously to award costs to the Society against me with respect to my second motion for recusal.  This is a violation of my rights to natural justice.  There is no reason why the Panel could not have canvassed my views along with the views of the Law Society on this issue prior to making its decision to award costs of this second recusal motion against me.  It did have the opportunity to hear submissions either from me or the Law Society on the issue of costs.  This decision with respect to the second recusal motion was made in our presence.  The failure to ask us for submissions on costs before the decision to award them against me denied me the fundamental right to be heard and have an input into that decision.  By denying me the right to be heard, the Panel has made a decision that exceeded its jurisdiction and constitutes an abuse. Whether or not the Panel was predisposed to award costs against me, it should have at the very least given me notice of its predilection in this regard and allowed me to make representations that might have convinced the Panel to make a different award or not to make any award at all.

With respect to the fourth ground for my concerns, this arises out of the decision of the hearing Panel to expect me to prepare a complete factum outlining “any and all remaining issues” to be argued supported by caselaw and that this material would be filed with the Law Society on or about March 24, 2010.  This decision once again was made without any input from either myself or the Law Society prosecution.  It is not clear why this decision was not discussed at the February 17, 2010 hearing that took place at which I was required to merely identify the issues which I wished to raise prior to the hearing of arguments on the merits.  Without any consultation, the Panel did not give me an opportunity to have any input into the decision to file all my material before March 24, 2010 and left me in a quandary.

It is clear that the reference to “any and all remaining issues” included the constitutional challenges that I intend to raise.  These are a matter of record before the Panel.  There are several such constitutional challenges.  It would have been impossible to prepare the numerous detailed facta and serve the appropriate Notices of Constitutional Question upon the provincial and federal attorneys general by March 9, 2010 that is, fifteen days before March 24, 2010 as I was required to do to the Panel’s knowledge under the Courts of Justice Act.  The Panel is well aware of this fact as the record will indicate that fifteen days notice has to be given with respect to such constitutional challenges.  The Panel’s ruling would have meant that I would have had less then one week (March 3 to March 9) to prepare the voluminous and complex documentation ordered to be produced which involved several Charter and constitutional matters for which I had been seeking disclosure from this Panel.  In fact, the Panel was convened to grant me the disclosure I needed to advance these constitutional challenges.  The direction was therefore unworkable and impossible to meet.  The order was oppressive.  It was made with the clear knowledge that it placed an impossible burden upon me.  It was abusive, contradicted the earlier direction given by the Panel when I and the Law Society counsel were present and should not have been altered unilaterally by e-mail without giving me a right to be heard.

I ask myself: why has the Panel placed an insurmountable burden on me when, to their knowledge, I was raising several complex constitutional and jurisdiction

matters for which I was seeking disclosure from them in order to be able to advance them properly? The order directing me to file full facta, books of authorities, etc. on “any and all issues” completely ignores the fact that the entire thrust of my motion pursuant to which this Panel was constituted and empanelled was precisely to get an order for directions on how and when these issues were to be brought and request and obtain the disclosure needed in order to advance these issues!  The Panel’s order of March 2, 2010 therefore ignores the relief that I was seeking and attempts to reconstitute my own motion that empanelled them so it bears little or no resemblance to the actual motion brought by me.

Finally, it is now a matter of record that the Panel Chair Carl Fleck contacted the Discipline Department without my knowledge.  Senior counsel for the Discipline Department rightly refused to respond to Mr. Fleck recognizing the impropriety of his conduct.  The fundamental principle of fairness that an adjudicator not conduct communications with a party in a proceeding without at the same time providing notice of such communications to the opposing party was breached.  It is true that the subject matter of the phone call from Mr. Fleck was a procedural matter.  However, it was the failure of Mr. Fleck to recognize the inappropriateness of his conduct and his disregard for maintaining an equal distance from both parties before him that gives rise to concern. Senior discipline counsel for the LSUC acted correctly in refusing to return Mr. Fleck’s phone call and to recognize the inappropriateness if not impropriety of this communication.

It is with great regret and a sense of disappointment and frustration that I have concluded that this Panel is unable to act independently in exercising its judgment with respect to the subject matter of the constitutional question that I have brought before it and the motions for directions.  I note that this Tribunal is the “court of competent jurisdiction” envisaged by the Charter in seeking the declaratory relief I have requested with respect to ruling on the constitutionality of the impugned disclosure rules.  I am aware that I may have no other opportunity to raise the constitutional challenge either before the Panel charged with the substantive allegations raised by the Law Society prosecution department nor in any other forum.  However, it is my considered opinion — arrived at after lengthy deliberation — that my constitutional challenge to the Law Society disclosure rules and balance of my motion will not be dealt with in an evenhanded, open-minded manner by the three members of this Panel for the five reasons outlined above.  The breaches of fairness and the five improprieties that I have identified lead me to the conclusion that it would be a waste of time for me as well as this Panel to proceed with my motion. Under these circumstances, I am left no alternative but to serve and file a Notice of Abandonment of my motion which I hereby do.

Dated September 28, 2010

______________________________

Harry Kopyto

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