In the attached letter sent to the Law Society Complaints Department, Kopyto signals his intention to ask Mr. Carl Fleck, Q.C. to recuse himself from the current Panel and any future deliberations. Rule 5 of the Rules of Practice and Procedure vis-a-vis communications with the Hearing Panel is also copied below the letter.
October 4, 2010
Sent by Fax: 947-7622
Law Society of Upper Canada
130 Queen Street West
Re: Carl Fleck, Q.C.
Thank you for your recent communication confirming an investigation in the above matter.
I omitted to mention to you that in the message that Mr. Fleck left with Ms. Cameron, Senior Counsel in the Discipline Department, he appeared not to have consulted with the other two hearing panel members in indicating that the adjournment requested by discipline counsel would be granted. As he is chair of the Panel, it was his obligation to consult with me which he did not do and secondly with the other Panel members to ensure that the majority of the Panel agreed to the adjournment. When someone’s livelihood is at stake, these are not mere formalities but go to the very heart of due process and fairness.
I also have located Rule 5 of the Rules of Practice and Procedure that the Law Society has promulgated with respect to communications with the Hearing Panel. Please note that Rule 5.01 specifically prohibits communications with the Panel outside of the hearing except in the presence of all parties and in writing through the Tribunal’s Office with a copy of the communication to all parties. This standard, which has been legislated with respect to the communications by parties to members of the Panel, clearly also applies to members of the Panel to parties.
It is apparent from Rule 5 that Mr. Fleck has violated the appropriate standard applicable in these circumstances by communicating verbally rather then in writing, by making his communication to a party in a disputed hearing instead of to the Tribunal Office, by doing so surreptitiously without my knowledge and by informing them of the outcome of the request for an adjournment without even consulting me and apparently without consulting other members of the Panel who form the majority of the Panel.
I wish to advise you that I will be asking Mr. Fleck to recuse himself from participating in the Panel in the future on any further deliberations in light of his egregious conduct.
RULE 5 COMMUNICATION WITH HEARING PANEL
Communication with panel 5.01
No party, non-party participant, representative or other person who attends at or participates in a hearing shall communicate with a panel outside of the hearing with respect to the subject matter of the hearing except, (a) in the presence of all parties and all non-party participants, who have been permitted to participate in the hearing with respect to the subject matter of the communication, or their representatives; or (b) in writing by sending the written communication to the Tribunals Office and a copy of the written communication to all parties and all non-party participants, who have been permitted to participate in the hearing with respect to the subject matter of the communication, or their representatives.