Harry Kopyto spent part of his LSUC hearing day on February 23, 2011, trying to demonstrate, with references to case law, that the Law Society bore the onus to prove that he had bad character. He argued that the LSUC had to meet a high standard of proof that he lacked good character before taking his right to continue working as a paralegal away. He argued that the issue of his being able to continue as a paralegal — a profession that he had practiced over a period of 22 years — involved more than earning his livelihood. He forcefully made the case that it had to do with a more fundamental question — the issue of his identity and purpose in life. He pointed out that he had worked as an advocate for social justice his whole life — his legal work helped to create the fabric of his social justice identity. If denied his licence now, not only would his vested interest in continuing his livelihood be destroyed but also his life’s work would be derailed. If the Law Society chose to revoke his status as a paralegal, then they had a requirement of proving their case beyond a reasonable doubt.
Not so, responded the tag-team of two lawyers opposing Harry. They argued that their charges of bad character need to be proven merely on a balance of probabilities. In other words, likelihood, not certainty, was the standard of proof to be applied at Harry’s hearing.
In effect, the Law Society was taking the opportunity to make a new law. A law that takes away a right exercised, in this case, for 22 years, is unfair. A law that was imposed through a hostile takeover by the LSUC, acting on behalf of lawyers, on their competitors, paralegals.
Harry made the general observation that people depend on and plan their lives on what is allowed under the law. To suddenly change the rules and not accommodate paralegals by refusing to grandparent them to their pre-takeover role offends the rule of law. Their vested interests give rise to a corresponding obligation on the regulatory body to be sure of their case before chopping off (or not) their professional heads, said Harry, in his unique lawyerly way of citing case law. Harry asked: is it reasonable for the LSUC to judge his vested right to be an advocate by the same criminal standard applied to someone charged with a speeding ticket? If so, then why not apply the criminal standard of proof to him when the stakes are so much higher?
The LSUC already exempts grandparenting paralegals completely from requiring a university degree or college diploma. The recognition of a higher burden of proof on the LSUC in grandparenting good character hearings is logical and necessary because the consequences of not being approved impose a drastic penalty on both a person’s long-established identity and livelihood. Expectation and reliance interests deserve aggressive judicial protection.
Kopyto referred to legal cases that recognized the vast powers that professional regulatory bodies already exercise. People’s work lives and their personal identity often meld together. The consequences of professional exclusion were often shown to be more serious than those flowing from a criminal conviction. The upholding of a vested right has even been held deserving of constitutional protection under the Charter of Rights.
Harry also argued that the onus of proving that he lacked good character fell on the LSUC from the start to finish, not shifting onto him just because the LSUC meets the low threshold of simply raising some evidence (even historic) of good character issues. The burden of proof lies on those who take away or deny a right. Harry argued for a strong presumption that a grandparented paralegal has good character — which does not mean that a finding of bad character can’t be made; only that it must be made on the basis of rigorous evidence. The vested right to work should be reflected by a high burden on the body (the LSUC) seeking to limit such rights by exerting retroactive authority.
It was a novel and compelling argument. But Margot Blight, Chair of the three- person panel, disagreed with Harry’s assertion that the standard of proof used in criminal cases should apply, upholding the conventional view that a civil standard applied. (Reasons to come). However, she has yet to rule on the issue of whether the onus of proof is on the LSUC or the grandparenting applicant.
The following hearing day, Harry advanced his arguments for disclosure as part of his ongoing preliminary motion. He specifically asked for the LSUC to provide him with copies of all complaints against him alleging “unauthorized practice” since 1989. In order to answer charges of exceeding the ridiculously limited scope of practice permitted to paralegals, Kopyto wants to show that the LSUC was aware that he didn’t always obey their rules to their mutual knowledge….yet took no prosecutorial action. Such silence meant acquiescence. Harry referred to a couple of instances in which he provided advice to clients for no fee because they could not afford legal counsel, appearing in open court with the consent of the judges. For the LSUC to now prosecute Harry for what they had previously accepted or tolerated was an abuse giving rise to what in legal terms is described as the defence of estoppel.
The LSUC retort to Harry’s request for disclosure of complaints was to accuse Harry of seeking to breach privacy rights and expectations of confidentiality by informants and LSUC employees. They argued that persons who made complaints might not do so if their identities were discoverable. Even after Harry agreed to the deletion of any “sensitive” information, they still argued against releasing the complaints. They also argued that merely obtaining a list of complaints against Harry was of no use because the basis for the LSUC’s decisions not to prosecute Harry would be unknown. A decision by Margot Blight on this request is also pending.
At one point during the two days of hearings, Blight refused permission to let a former associate of Harry’s, Angie Codina, make her own well-researched submissions on his legal points. Clearly Blight did not want to offend her LSUC overseers by allowing a disbarred lawyer to speak on the record on Harry’s behalf. Nonetheless, Ms. Codina was able to stand beside Harry to provide him useful information in his argumentation — but only Harry was allowed to vocalize this information. Further, Blight did not permit Harry to refer to cases that the Law Society had not referred to but that were contained in their own Brief of Authorities when he was making his reply to their arguments. She also rejected Harry’s argument that his vested rights to work as a paralegal required proof beyond a reasonable doubt (criminal case standard) and not on a balance of probabilities (civil case standard). These decisions reflect a narrow legalistic approach. They show that Blight is a loyal systems person. While purporting to appear fair to Harry, she is undoubtedly winning the approval of her LSUC handlers by case-managing Harry’s hearings including setting several additional dates for his hearings: Monday March 28th, Wednesday March 30th, Wednesday April 27th and Monday May 9, 2011.
Between 30 and 40 persons attended each of the two days of hearings. As always, there was an exchange with the audience during the breaks. An enthusiastic backer came in with several red-lettered signs saying “The world would be scary without people like Harry” which were displayed at the back of the hearing room during recesses. Harry’s supporters encouraged Harry with their good wishes and suggestions and maintained vigilant oversight over the conduct of the three-person panel headed by Blight.
Although it is too early to make a final assessment of Margot Blight’s conduct of Kopyto’s good character hearing, it is highly likely that any discretion she might have will be used against Harry and his arguments, albeit couched in legalistic language. Blight knows her role. Fortunately, so does Harry. As well, Harry’s supporters, too, are admirably fulfilling their role.