Kopyto mulls decision to force Blight to rule on constitutional challenge

Panel Told to Ignore Public Interest

When you go to court, you’ll either be found guilty or not guilty. You’ll either win or lose your case.  Justice will be handed down, one way or another.

But the legal world of the Law Society of Upper Canada (LSUC) versus Harry Kopyto is a strange place.  And the laws that govern other proceedings are sometimes nowhere to be found.

You know the story well. Harry faces a hearing before a three-person LSUC panel.  It is the third panel he has faced — but that’s another story.  He has to prove his “good character” to practice as a paralegal. The Law Society is controlled by lawyers.  He doesn’t want to be judged by lawyers or those they appoint.  He wants the public to decide if he can continue to work as a paralegal. Something, incidentally, he has done for twenty-two years without anyone saying “Boo”.

So Harry brought a motion before the Panel judging his character. The motion was to drop the proceedings against him. The grounds for the motion? By-law 4 — the law that put lawyers in charge of paralegals in 2006 is unconstitutional and should not be enforced. The law allowed lawyers to control and judge their competitors including allowing lawyers to appoint at least two of the three Panel members presiding at good character hearings.  It put the fox in charge of the chicken coop.  It permitted lawyers to strangle their more affordable competitors by cutting their scope of practice to the bone.  The result?  A monopoly by lawyers who charge $340.00 an hour on average making a mockery of accessible justice to the vast majority of Ontarians.

Harry argued his motion this spring.  Because the scheme of the 2006 law denied affordable access to justice, the proceedings against him were part of an unconstitutional scheme and the panelists — appointed by lawyers — should decline to judge him in order not to be part of that unconstitutional scheme itself.  Simple. Clear. Logical.

The LSUC prosecution, not surprisingly, argued otherwise. They said that the constitutionality of the scheme was not the Panel’s business. The Panel’s duty to give voice to the public interest applied only to judging the good character of candidates to be paralegals.  They couldn’t question the scheme that gave them authority to exercise such judgment. (They are there just to fix the roof. Don’t mind that the foundations are rotten.)  All of these points were made by the LSUC prosecutors in a motion to dismiss Kopyto’s challenge to the scheme on grounds of lack of jurisdiction.

Blight Refuses to Hear Constitutional Challenge on Grounds of Institutional Incompetence

 

The decision by the Panel, headed by Margot Blight, was finally released on July 5, 2011.  In her decision, she refused to assume jurisdiction to deal with Harry’s constitutional challenge.  She found that the Panel only has the power to rule on good character issues in respect to individuals and not with the class of paralegals as a whole.  Harry’s arguments, she ruled, are based on facts not properly before her.  By this reasoning, the Panel does not have the jurisdiction to do anything except deal with Harry’s character and nothing else is within its mandate.

Such narrow reasoning isolates the Panel’s function from the legislative scheme that it is a part of.  Good character hearings didn’t fall from the sky.  By-law 4 allows lawyers to appoint and administer the majority of the panelists at such hearings.  Each Panel is therefore directly and personally implicated in the administration of the scheme as it is not legitimately appointed if the regulatory scheme is in fact unconstitutional. Harry’s argument, of course, is that it is unconstitutional because it denies access to justice by letting lawyers take over their more affordable competitors at the expense of access to justice.

While Blight had the decency to admit that Harry’s critique of the regulatory scheme deserved a hearing, she lacked the perspective of having her Panel deal with the issue.  She chose not to open up a can of worms that would end up embarrassing the Old Boy’s Club that runs the LSUC.  In an interesting and critical excerpt from the Reasons for her Decision, Blight wrote as follows:

Despite being implicated in this way, the Hearing Panel does not consider itself institutionally competent to conduct the broad constitutional inquiries into such matters as the governance of the Society and the restrictions on paralegal practice…  The Panel considers that such questions are appropriately raised before a Court of original jurisdiction.

Blight’s decision raises more questions than answers.  Does she have the right to refuse to deal with the validity of her own appointment?  Curiously, she ruled that Harry’s motion falls outside of her mandate while at the same time recognizing that the validity of the appointment of the Panel is an issue within the Panel’s jurisdiction.  Why is the Law Society not “institutionally competent” to deal with Harry’s constitutional challenge? God knows that the Law Society is an influential legal apparatus with over five hundred employees and massive resources (including a well stocked wine cellar that is the subject of utmost admiration by those who have sumptuously dined in the LSUC’s inner sanctum).

Blight Saves LSUC From Embarrassing Hearing

Margot Blight knows that the Law Society would be placed in an embarrassing position if it was forced to respond to Harry’s challenge to By-law 4.  The conflict of interest in the LSUC’s position and conduct is glaring — having to promote access to justice in the public interest while in fact dramatically reducing the work that their more affordable paralegal competition are allowed to do.   Blight understands that this was the essence of Harry’s argument made over the course of several hours before the Hearing Panel.  She even summarized his position by acknowledging that you can’t “ride a horse in two different directions at the same time”.  Granting Kopyto a hearing on this constitutional challenge, along with the disclosure of LSUC records that he would be entitled to receive, would have been a strategic defeat to the LSUC and to the Blight Panel’s handlers. She also does not see her role as that of confronting LSUC handlers and giving Harry an opportunity to bang the nails into the coffin of By-law 4. In order to avoid this unsavoury alternative, the only remaining option she had was to pass the buck by directing Harry to the Superior Court through an independent and unrelated proceeding.

Blight’s decision will not go down in history as her finest moment of reasoning. First, she decided to avoid considering the constitutional validity of her appointment to the Panel under By-law 4 on grounds that neither Harry nor the Law Society  raised or were even considered in the written and oral arguments heard by her, which was clearly unfair. Secondly, the phrase “institutional competence” is usually used (logically) where there is more than one venue to raise a legal or factual issue. This is called concurrent jurisdiction.  Someone fired from a job because of discrimination may choose to go either to the courts or a Human Rights Tribunal.  In Harry’s case, however, there is no alternate venue to the Panel hearing.  Despite Blight’s dubious advice that Harry’s argument could be appropriately dealt with by a Court, the proceeding against Harry would continue as if it was constitutionally well-founded thereby denying him any benefit or remedy in real life.

Is Kopyto Heading to the Divisional Court?

 

The suggestion that Harry seek relief in the courts rather then before Blight may be illusory.  A court may decide that Kopyto has no right to raise an issue involving a constitutional challenge based on a denial of access to justice — after all, Harry personally is not the one who is being denied such access so he may have difficulty establishing standing in a court to bring such a proceeding.  Yet the Panel’s suggestion that the LSUC is not competent to deal with Harry’s motion is predicated on there being another forum that could deal with the challenge,  when in fact there may well be no such other forum.

Blight has once again pulled the fat out of the fire for the LSUC prosecution.  She has averted an embarrassing showdown between Harry and his prosecutors           that would have involved disclosing LSUC records that would undermine the legitimacy of the paralegal takeover.  She flatly refused to allow a hearing on Kopyto’s argument that went to the very heart of the Panel’s legitimacy. She also made other glaring errors.  For example, she concluded that the Panel could not grant any of the relief sought by Harry in his motion as the Panel could not invalidate legislation but merely refuse to apply it.  In fact however, except for one declaration that was being sought in the alternative, Harry was simply asking the Panel to make findings of fact and not law. She wrongly misconstrued these requests for rulings on the legality of By-law 4.

Blight also failed to give effect to the duty of the Law Society to act to facilitate access to justice for the people of Ontario and to maintain and advance the cause of justice as required by Section 4.2 of the Law Society Act. She also took a very narrow view of her duty to promote the public interest at the good character hearing.  And she left Harry without any realistic remedies to his challenge that the Panel was personally part of an unconstitutional scheme.

Harry now has a choice. To proceed with his hearing on the merits on the charges of bad character against him with witnesses scheduled to be called on the next hearing date of September 6, 2011…or to seek an order from the Divisional Court of the Superior Court of Justice to force Blight to hear his constitutional argument.  He is now mulling over his options.  A decision as to what course he will take will be made in a few days.

 

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