On December 20th, the Law Society of Upper Canada (LSUC) announced that it would be replacing the three-person panel that was appointed in 2009 to deal with disclosure requests made by Kopyto. The decision to replace Chair Carl Fleck and the other transparently biased and hostile panel members is an important victory that could not have taken place without public support and scrutiny. Close to 50 supporters rallied to each of three hearing dates to let the Panel know that its treatment of Harry would be a matter of public knowledge and record. Many took days off work to witness the hearings. Harry’s success in getting Alan Gold, the Chair of the Hearings Tribunal, to dump Fleck and his cronies is a tribute to their dedication to defend Harry and their unwavering support and participation in his fight for affordable access to legal representation.
But the victory may be short-lived. Now, it’s a new year. The Law Society has refreshed itself. Three new faces will beam down on Harry and his supporters from the podium in the hearing room. Its prosecution department is geared up for a good fight.
Who are the new panel members? Are they more likely to give Harry a fair hearing? What will Harry’s strategy be when he appears before the new panel at 9:30 a.m. on Monday, January 10th at the Lamont Learning Centre at Osgoode Hall?
To answer these questions, we need to reel back to Harry Kopyto’s past three “good character” hearing days in his application to be grandparented as a paralegal.
They were part of a motion Kopyto brought to get disclosure. He needs to get the LSUC’s own records to challenge the takeover of paralegals by lawyers in a turf war to eliminate their more affordable paralegal competitors. From the start, Kopyto’s strategy has been to show that the takeover is an abuse of a dominant position by the LSUC as defined by the federal Competition Act and has the effect of lessening choice while materially contributing to monopoly pricing.
The LSUC was initially ambivalent about the takeover which was rejected by three different Commissions over a period of 20 years. During this time, the government and the LSUC, which administered the Plan for several years, gutted Legal Aid Ontario by freezing the tariff paid to lawyers, imposing strict income limits on applicants and vastly reducing the scope of covered services. Paralegals filled the vacuum. The number of paralegals in Ontario soared from a few hundred in the 1970s to close to 4,000 by 2006, fuelled by the demand from working poor who could not afford private lawyers’ fees and were no longer able to get Legal Aid.
The LSUC could see where Kopyto was heading with his good character hearing and stonewalled Kopyto’s requests for disclosure that would prove his challenge. Thus began the “disclosure wars”. From October 26, 2009 until this fall, the Fleck Motion Panel locked horns with Harry. The Motion Panel wanted to be the Hearing Panel that would decide Kopyto’s fate, not just a Motion Panel dealing with his disclosure issues. They wanted the glory of exorcising Kopyto, a thorn in their side for decades, from the world of law. They kept pushing against their limited mandate to deal only with disclosure issues. But they failed under the critical scrutiny of dozens of Harry’s supporters. The Motion Panel, unable to isolate Harry, eventually lost its sense of judgment. It engaged in five acts of impropriety which included contacting the LSUC prosecutors behind his back and ordering him to pay legal costs without allowing him the right to make submissions. The eventual result? Kopyto discontinued his motion last fall and is now waiting for the Motion Panel to decide whether it will grant the LSUC prosecutor’s request for $15,000 in costs against him. More importantly, under the pressure of his supporters, the LSUC administrators backed off appointing the Fleck panel to deal with future hearings into the merits of his case which they had the right to do under the LSUC rules.
Fast-forward to the present. The LSUC has scheduled Monday, January 10, 2011, as the next date before a new three-person panel who will hear Harry’s case on the merits.
The issue is the same: how to get the Law Society’s records so he has the evidence he needs to challenge the legality of the takeover. This is what he has asked for to get the facts needed to prove his case:
- LSUC records and correspondence relating to the Competition Bureau’s expressed concern that the LSUC will use quality of service arguments to reduce paralegals’ scope of practice;
- All records that relate to the LSUC’s rationale that paralegals’ incompetence and dishonesty were so widespread that it justified the takeover;
- All evidence in the LSUC’s possession concerning the impact the takeover has had and will have on the accessibility of legal services to the public.
The right to know the case against you and obtain evidence to defend yourself–disclosure–is deeply rooted in the law. Kopyto has the same disclosure rights as anyone charged in a criminal court. But he faces Big Law and a well-oiled LSUC prosecution machine which is on a mission to wipe Kopyto out. The LSUC has refused to disclose the documents Kopyto needs. He has been given only the materials the LSUC intends to rely on. The LSUC claims he is invading their privacy rights. In response to one disclosure request, the LSUC refused to admit that it possessed various items including an ethically questionable secret tape recording made of Kopyto used to censure a lawyer for associating with him.
Who are the three new panellists who will decide Kopyto’s professional fate and rule on his disclosure applications and challenge to the takeover? The lawyer appointee — Judith Potter — will Chair the Hearing Panel. She is an ardent advocate and promoter of the Access to Justice Act which legalized the takeover. She has pledged to oppose the “encroachment” (her word) of the paralegal scope of practice under the LSUC’s by-laws. She ran for Bencher on a program to protect the turf of her base within the LSUC made up of what she calls the “smalls and solos”; that is, small and single-lawyer firms who experience the stiffest competition from more affordable paralegals. She has received accolades from many members of the Ontario Bar Association (OBA) and others who see her as their saviour, cheerleader and promoter. Potter associates herself closely with the OBA and headed a LSUC task force to meet their needs. In its final submission to Potter’s Task Force, the OBA stated, “Regulation of paralegals would go a long way towards alleviating the competitive pressure for certain types of legal work which helps to sustain small firm practices”. According to the OBA, the takeover should stop paralegals “encroaching further into the area of Small Claims Court, will drafting and family law disputes…”.
Kopyto’s challenge to the takeover is going to be judged by a person who has become an ardent public advocate for the takeover. Her hostility to paralegals is so intense that the Law Times reports she opposes having them swear the same oath as lawyers and denies that paralegals constitute a “profession” because they have not gone to university.
Cathy Corsetti, the Chair of the Paralegal Standing Committee (PSC), will join Judith Potter on the panel. She is the chief officer and public face of the Committee charged with administering and promoting the very legislation that Kopyto will be asking her to overturn. How can she approach Kopyto’s arguments with an open mind when the Committee which she heads has a mandate to develop and recommend policies to govern and regulate licensed paralegals? Oh yes, she also has a lengthy history of collaborating with the Law Society in promoting the takeover. She enthusiastically repeats the Law Society’s shabby, worn excuse, “that it is critical to protect the public from misconduct” by paralegals. What about competition, choice and affordability of legal services? Not a word.
Rounding out the panel of three is Andrea Alexander, a lay bencher appointed by the Attorney General in 2003. She has participated in activities held by the Ontario Bar Association which has boasted about how then Attorney General Michael Bryant pledged to restrict paralegal’s scope of practice to the OBA.
On hearing the names of the Hearing Panel line-up from Al Gold on December 20th, Kopyto’s reaction was “déja vu”.
Is there an apprehension of bias in having this panel decide on Kopyto’s challenge to the Access to Justice Act which legalized the takeover? Harry Kopyto relies on a famous quote from Lord Denning made in 1969: “In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself, or the mind of the Chair of the tribunal, however impartial it may be, who sits in the judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression that would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit.”
Harry Kopyto’s good character hearing has come full circle. Being judged by people who have their own agenda diametrically opposed to his. Kopyto is brave. He takes risks. Luckily, he does it all for us. Once again, it’s our turn to attend the hearing on Monday, January 10, 2011, in numbers greater than ever. A good man is fighting Big Law. He is entitled to a fair hearing. Our participation as witnesses has been vital in the past. It is no less vital now. See you there.