Their Lordships Keep their royal Moniker
A few years ago, the judges of the appeal courts of Ontario made a momentous decision. (Hang on to your hat—here it comes.) Until that decision, it was a requirement that a judge of the appeal court be addressed as “My Lady” or “My Lord” (P.S. to show that you were really clued in, you addressed them as M’lord or M’lady). However, in a spirit of concession to modernity and approachability, a judicial directive was issued permitting litigants to address these esteemed and venerable ex-lawyers sitting at the apex of the judicial system as either ladies or lords, or simply “Your Honour.” Wow! Who would believe it? But hold your applause… As soon as you actually signed in with the Clerk in the Appeal Court at Osgoode Hall, he pulled you aside and gently whispered in your ear, often with a wry smile, “In this courtroom, we call our judges My Lord or My Lady.”
A lesson is to be learned about the nature of justice from this little vignette. What judges pretend to do and what actually happens in the legal system can be miles apart. A wise lawyer always tells his clients that judges hand out law, not justice. Many times, you have to be lucky to even get law.
Not all high court judges are the same. However, most of them are acolytes of the judicial system acting as if they were anointed instead of appointed. God forbid that they should use the same elevators, parking lots, (although most are chauffeured), powder rooms and dining areas as the rest of us (the hoi-polloi will never appreciate the fine bouquet of the imported French champagne from Osgoode Hall’s renowned winecellar.) They identify with the rich and powerful whose interests they protected as lawyers before being selected to the Bench—and they are protected from accountability for wrong-doing by the feudal doctrine of absolute immunity from civil litigation. Nobody knows this more than Harry Kopyto. His suit against Judge Marvin Zuker of the Family Court for illegally altering a transcript of proceedings when Harry appeared in his courtroom was tossed on that ground.
Law Society Plays on Home Ice
Justice Darla Wilson was presiding in courtroom 19-5 of the Superior Court of Justice in Toronto on July 4, 2012. She was assigned to rule on the Law Society’s motion to block Kopyto’s claim to declare the takeover of paralegals by their competitors unconstitutional. Kopyto argues that the takeover resulted in a lawyers’ monopoly over legal services thereby destroying competitive pricing at the expense of the constitutional principle of access to justice.
This was the argument Harry Kopyto advanced before the three-person Law Society panel chaired by Margot Blight, charged with assessing his character to determine the outcome of his application to be grandparented as a paralegal. Blight dodged the bullet, ruling that the Panel was not “institutionally competent” to deal with the issue. In other words, she had no problem playing her role as part of what might be an unconstitutional scheme.
Kopyto then issued a claim in Superior Court seeking the remedy that Margot Blight denied him. That’s the claim that the Law Society sought to block before Judge Darla Wilson on July 4th.
One got the impression that the Law Society lawyers were playing on home ice in her courtroom. They argued that there was no right to affordable justice. They argued that the Law Society decisions could not be reviewed by the courts—the Law Society could do no wrong. They inaccurately accused Kopyto of alleging a breach of the federal Competition Act by the Law Society. They argued that his claim lacked material facts to support his case. Justice Wilson furiously wrote down all their arguments. Her hands were whizzing as she took dictation. It was like two lovers warming a bed.
Kopyto retorted. He referred to the Vilardell case decided by the British Columbia Superior Court in May in which Justice Mark McKeown declared a charge for renting the courtroom imposed on litigants to be in breach of the constitutional principle of access to the courts. He held that the $600.00 daily rental fee was a direct economic barrier that unreasonably restricted such access. He found that its inhibiting affect was so obvious that he did not need to receive proof of it. He ruled that legislation could be invalidated when it unreasonably inhibited access to the courts. Vilardell provided a strong legal framework for Kopyto’s claim.
Kopyto argued that the courts had the right to review and even quash by-laws that were made in bad faith or for ulterior motives. No one, not even the all-powerful Law Society, was immune from judicial scrutiny. He referred to a series of cases in which courts have permitted human rights codes and other statutes to be relied on as binding “legislative facts” in civil litigation. Thus, the Competition Act’s definition of what constitutes abuse by a dominant monopoly could also be relied on as evidence of an unfair practice by the Law Society Benchers elected by lawyers.
Wilson no Friend to the little Guy
Justice Darla Wilson interjected a few times during Kopyto’s presentation during the daylong hearing without showing much enthusiasm for his points supported by several legal precedents. She was particularly disturbed by his suggestion that the Vilardell case—two years in the making—was persuasive. Wilson, however saw it in conflict with the Christie decision of the Supreme Court which ruled that there was no specific right for every person to be represented at public expense before every court and tribunal. The issues were clearly different in Vilardell but Wilson was conflating the two. In so doing, she was endorsing the Law Society’s distortion of Harry’s argument which suggested that this was also his position.
The hearing ended with Justice Wilson indicating she would try to deliver her decision in 7 to 10 days, an inauspicious sign, given the lengthier time that it would take to reach a positive decision. But there are less subtle reasons to anticipate a negative decision. Darla Wilson is no stranger to the issue. She was appointed to the Bench in December, 2007 having been promoted as a member of the Ontario Bar Association (OBA) which led the campaign within the Law Society to take over governance of paralegals. The OBA’s membership base, made up largely of what the OBA calls “solos and smalls” is in direct competition with paralegals for the same legal service market. The OBA actively campaigned to elect Benchers who run the Law Society who openly ran to stop the “infringement” of their work by reducing paralegals’ scope of allowable legal services through the takeover.
Even as a judge, Wilson continues to attend and speak at OBA functions who regard her as their advocate. Further, she is a former member of the establishment mega-firm, Borden Ladner Gervais where Panel Chair Margot Blight also hangs her hat. What a small and incestuous world it is that nurses Ontario’s judicial elite!
Justice Darla Wilson is no friend of the little guy. She has cut her teeth defending insurance companies and municipalities in a wide range of civil litigation. She specialized in defending hospitals in negligence claims. At the time of her appointment, Wilson was a partner in the law firm of Lawson, McGrenere which promotes itself as offering “an exemplary level of service to insurance companies handling the most demanding cases…with enthusiasm”. One thing for sure—she doesn’t have Harry Kopyto’s picture hanging on her office wall.
Less than Meets the Eye
Kopyto is unfazed. He sees his legal struggle as resisting the worldwide trend to monopolization taking place in all areas of the economy including the delivery of legal services. Like all other public institutions, the judicial system is deeply influenced by those with money and power. Like a cobweb, the judicial system captures the weak and small; the strong and rich push it aside and tear it to shreds. While required by historical compromise to project a veneer of independence and fairness, there is often less than meets the eye when the judiciary is observed closely. However, movements for reform, resistance and social change cast a legal shadow and can reshape the law—reproductive and gay rights are two good examples. In such cases, success doesn’t come easy. Protracted legal battles are the norm.
The Vilardell decision will soon proceed to the British Columbia Court of Appeal and, undoubtedly, to the Supreme Court of Canada. That court is unique in explicitly basing its decisions in large part on public policy considerations. Its Chief Justice has already identified judicial access as the most critical crisis facing Canadian courts. The Supreme Court can take bold measures to protect the integrity of the judicial system when under pressure to do so. The sycophants like Wilson who uncritically toe the line of Big Law have a more limited vision.
Wilson’s decision, which will work its way through the appeal courts when rendered in a few days and which will be reviewed in depth in this blog upon release, is only the opening shot. The battle is joined. However, the war will rage and will not be over until judicial access becomes a reality.