Harry Kopyto gets ready for two more Law Society hearings on Monday March 28th and Wednesday March 30, 2011 (9:30 a.m.) both days at Osgoode Hall – room to be announced. In the meantime, he has been slammed with a $10,000 LSUC costs order by a previous panel that had been appointed to deal with a preliminary motion for directions to facilitate disclosure from the LSUC.
Harry abandoned the motion he brought before this panel chaired by Carl Fleck after he found out that Fleck had telephoned his prosecutors behind his back only a few days before a scheduled hearing date. Fleck failed to deal with this accusation in his decision awarding costs against Kopyto for abandoning the motion. Fleck adopted the Law Society prosecutors’ argument that Harry should have filed an affidavit to prove to Fleck that he made the phone call. Irony of ironies! Harry should file an affidavit telling Fleck what Fleck did? In fact, it was the LSUC prosecutors who transcribed Fleck’s telephone call and provided a copy of the transcript to Harry. And now they want an affidavit? What planet are they living on?
Fleck adopted this technical argument even though the Law Society permits a motion to be brought without affidavit evidence. In fact, Fleck had previously dealt with a complaint of bias against another panel member who sat on Kopyto’s motion panel, W. Paul Dray, without requiring an affidavit by Harry and with nary a squawk from Fleck. It seems that the LSUC rules can be bent like a pretzel by the LSUC or selectively applied whenever it serves their interests.
In his reasons for awarding costs, Fleck charged Kopyto with seeking to delay the proceedings by abandoning his motion a few days before the last scheduled hearing date. This accusation camouflages the fact that Kopyto acted immediately after Fleck’s illicit tryst with the Law Society prosecutors was revealed to Kopyto by red-faced LSUC prosecutors only a few days before the scheduled hearing.
Fleck’s contact with the prosecutors was only the latest of several steps taken by Fleck that showed that his motion to get disclosure from the LSUC prosecutors was not going to be dealt with fairly. Fleck had initially bent the rules by ignoring a decision of the Divisional Court that, if applied by the Panel, would require Paul Dray to give his own reasons for not recusing himself when Kopyto accused him of bias. Fleck also ignored the law by deciding that Dray was not in a conflict of interest position because Harry was seeking Paul Dray’s correspondence (in his previous capacity as Paralegal Committee Chair) with the federal Competition Bureau as part of his disclosure motion.
Fleck had also previously awarded costs against Kopyto for challenging Dray’s neutrality without allowing Kopyto the opportunity to make submissions with respect to the costs award, another fundamental breach of the law. Finally, Fleck ordered Kopyto to bring all motions that he intended to bring before his panel even though this exceeded Fleck’s authority and was a power grab to become “seized” with Kopyto’s hearing on the merits (a nice addition on a resume for a would-be judge). The last straw for Harry was Fleck’s extra-judicial contact with his prosecutors in breach of the Law Society’s own rules and fundamental principle that judges should not communicate with either side outside of the hearing room without notice to the opposing side.
The unfairness of the LSUC procedures and decisions have been visible throughout Harry Kopyto’s prosecution. A second panel (which replaced the badly compromised Fleck panel) witnessed the chair of that panel, Judith Potter, recusing herself because of an appearance of bias. However, before doing so, Potter cleared a fellow member of her panel who Harry also accused of bias. It is ABC that a judge who recuses herself because of an appearance of bias should not proceed to make an important decision including deciding whether a fellow member should remain on the panel. Once you decide to recuse yourself, you recuse yourself, period.
The charade of justice continues with Harry’s third panel chaired by Margot Blight. Blight had already made an astonishing ruling by denying Harry the right to reply to arguments made by his opponents on an earlier hearing date. This was a blatant breach of natural justice which exposed Blight’s disregard for procedural fairness. At the February 4, 2011 hearing, Blight refused to allow a former associate of Harry’s, Angie Codina, to make brief submissions on legal points raised in Harry’s motion that Angie had previously researched in depth. Instead of letting Angie make the legal points, Blight forced Harry to recite her notes to the panel. In what could easily have been a cut from a Three Stooges movie, Angie stood next to Harry at the podium whispering into his ear so that he could repeat her words and citations. Allowing Angie to present her own caselaw research would not have disturbed the horses or brought the sky down. Yet the panel was so obsessed with not allowing Angie, a disbarred lawyer, to appear even as a friend to make submissions on Harry’s behalf that it took the better part of an hour to write its ruling. In doing so, Blight crafted a wily excuse admitting that she recognized that Angie was a friend of Harry’s and that the Law Society’s rules permitted a friend to participate in the hearing. However, as Harry had so many friends (referring to those in attendance in the audience), she implied that she did not want to create a precedent. While ironically affirming her intent to be “assiduously” fair to Harry in her decision, Blight denied Harry another basic right and reduced the hearing to a comedic spectacle. Harry quickly corrected Blight by pointing out that the audience was made up of persons who were not necessarily friends but clients or simply those who supported his rights to be working as a paralegal. In her too clever effort to cover up her unjustified refusal to allow Angie Codina to speak on Harry’s behalf, Blight revealed a crafty and manipulative disposition that is becoming increasingly more apparent as the hearing drags on.
The Law Society is clearly determined to settle a score with Harry. The LSUC Finance Department began collection efforts against Harry as a result of Fleck’s February 22, 2011 $10,000 costs order within days of the costs order (see Law Times News coverage here). The Law Society did not even wait for 30 days that Courts give parties to pay costs orders before demanding its pound of flesh.
The legal elite is out to crush Harry. Resistance, however, is not futile. Harry’s supporters continue to mobilize at each hearing date. The panelists are well aware of Harry’s supporters’ presence. Even as they judge Harry, they are aware that the public also judges them. Ultimately, those attending Harry’s hearings are not passive observers but active participants. Their involvement can restrain, maybe even stop Big Law’s well-oiled machine from pulverizing one of their most determined opponents. Public presence at both hearings on Monday and Wednesday March 28th and 30th continues to be critical.