Kopyto Appeals Judge’s Rejection Of Constitutional Right To Affordable Court Access

One dramatic Moment

There was one dramatic moment that stood out during the Superior Court hearing on July 4th before Judge Darla Wilson between Harry Kopyto and the Law Society. But first, the background.  The “Society”, as the in-crowd refers to it, was out for a kill. The prize?  A decision whether the Court will allow Harry Kopyto’s challenge to the takeover of paralegals by their lawyer competitors to survive.

Kopyto’s argument? That the takeover resulted in inhibiting access to the courts.  Competitive pricing and monopolies don’t mix.  End of story. The fundamental issue before the court was crystal-clear.  Is it unconstitutional for a public body like the Law Society to unreasonably inhibit access to the courts?

Kopyto, perhaps naively, thought that he had the wind in his sail.  After all, only a few weeks earlier, the Superior Court of British Columbia in the case of Vilardell v Dunham answered this question.  The answer was a massively researched and documented yes!  Judge Mark McKeown’s 178-page decision that went right back to the Magna Carta and took two years to write and was bolstered by briefs from the Trial Lawyers’ Association and the Bar Association.  It illegalized a B.C. Government-imposed daily rental charge on courtroom space of $600 on the exact same grounds that Kopyto was arguing.  Judge McKeown held that the British Columbia Government could not pass laws that directly inhibit access to the courts. The decision caused waves in legal circles across the country.  But those waves did not lap into Wilson’s courtroom when the case was argued.  In fact, the atmosphere was so arid that the seeds of affordable justice would never flower in her courtroom.

The dramatic moment…?

One of the three Law Society lawyers present in court unexpectedly jumped up from his seat and flourished copies of a Notice of Appeal filed by the B.C. Government from the Vilardell decision. He gently handed a copy to Judge Wilson whose eyes were instantaneously transfixed on it. He then defiantly slapped another copy on Kopyto’s desk in a gesture of scarcely disguised triumphalism. The message?  The B.C. Government will make mincemeat of Viardell on appeal and Wilson should completely ignore it. There you go Kopyto! Chew on this!

Walk in the Park on a Summer Day for Law Society

That gesture was not lost on Wilson who made reference to the Notice of Appeal in her judgment dismissing Kopyto’s claim released seven days after the hearing. In fact, it was the first item in a series of misconceived reasons given by her for rejecting Judge McKeown’s landmark decision.

Kopyto didn’t know it at the time, but Judge Wilson would have been at the very bottom of a long list of judges that he would have chosen to hear the Law Society’s dismissal motion.  Her judgment was written with a combination of messianic zeal and fervent partisanship.  For the three Law Society lawyers (one monitoring, two at the counsel table) appearing in Wilson’s court, it was like a walk in the park on a summer day. The Ontario Bar Association, which led the fight for the takeover of paralegals, had been a rousing cheerleader for Judge Wilson, whom it claimed as one of its own, when she was appointed to the Bench. Wilson’s lengthy professional history as a mouthpiece for the insurance industry had also given her cred with the Harper government that appointed her to a judgeship.  She has already shown her loyalty to her former clients by reducing awards for injured litigants. Not good vibes for expecting a judgment from her to open the courts up to litigants who may end up suing her former clients.

Wilson’s decision was dictated word for word to her by the LSUC lawyers.  Her judgment was almost a direct transcription of their legal brief.  The courts are powerless to question the LSUC’s conduct.  (Even it if is unconstitutional?)  A regulatory body like the LSUC can’t be charged with breach of the Competition Act which used to provide for criminal sanctions. (But why can’t definitions in the Act be relied on, like other legislative facts, as setting a standard of acceptable conduct in non-criminal cases?)  Astonishingly, she also held that “It is not the function of this Court to determine whether the legislation is proper or whether it is not achieving its intended means” referring to the by-law of the Law Society Act that gave lawyers control over paralegals.  (Such a wide swath for the gatekeeper of legal advocates!  Immunity from judicial review of the Law Society?  Who else stands above the law?)

Law Society Can Do No Wrong!

Wilson didn’t stop there. She ruled that the LSUC is conclusively deemed to act in the public interest. (Doesn’t reality count for anything?) Therefore, Kopyto can’t argue otherwise.  (The Law Society can do no wrong!)  Suck it up Kopyto.  And…here is a Bill of Costs for $8,500 payable by you for your impudence in launching this claim.  (After all, somebody has to pay for Judge Wilson’s salary for her effort in copying the arguments of the Law Society).

Wilson’s decision is unique for its unmitigated genuflection to Big Law.  Lack of access to affordable justice is a watershed issue.  Public and accessible courts are an historic hallmark of civilized societies.  What is at stake in this debate is maintaining equal access to justice, the integrity of the court system, the non-discriminatory rule of law, the independence of the judiciary and the preservation of the courts as an essential forum for public debate of the meaning and effect of the laws that govern us. Without affordable access to the courts, none of these precepts of a democratic legal system has any vitality. Yet Wilson was oblivious to this fact. Doesn’t this expose the class nature of the judicial system?

One of the main reasons endorsed by Wilson for denying the existence of a right of access to the courts as a constitutional principle was the decision of the Supreme Court of Canada in the Christie case made in 2007.  But that case dealt with another issue.  It dealt with the government providing general access to all forms of justice through a wide variety of legal services.  Kopyto’s argument was based on the much narrower but more important precedent set by Vilardell which was that a law is unconstitutional if it directly tends to inhibit access to the courts.  The Law Society conflated these two issues.  It was a transparent manoeuvre which Wilson accepted with the blind enthusiasm of a cheerleader.  Yea, Law Society!  Go, go, and go!

Wilson Salutes the Flag

The legal system in Canada is undergoing major convulsions. It is becoming increasingly more bureaucractic, inaccessible and expensive. Many of its functions have been hived off to tribunals and boards that are even more deeply integrated and dependent upon elitist government bureaucrats than the courts. According to recently retired Judge Ian Binnie of the Supreme Court of Canada, major corporations in Canada are stampeding to arbitrators to resolve their differences in order to avoid the delays, expenses and unpredictability of judicial decision-making. The broad economic forces that are reshaping the world economy into monopoly conglomerates also affect all the professions in Canada. This includes the 45,000 lawyers in Ontario that elect the Law Society Benchers who have led the charge to colonize paralegals.  Interestingly, the Law Society is also a hothouse for the incubation of future judges like Wilson whose mindset, values and outlook have shaped their perceptions and judgments.  Who wants to bite the hand that feeds them?

Approximately twenty years ago, the Law Society destroyed Ontario’s once world-class Legal Aid Plan and now it has swallowed its paralegal competitors against the recommendations of three different commissions, including Justice Corey’s inquiry which opposed the takeover by lawyers in powerful and unrestrained language.  He pointed out that paralegals provided more affordable services than lawyers who he said “hated” them.

So now the deed is done.  Rally around the flag, boys!  Yes, Wilson is there, saluting the Law Society flag from inside the judicial service industry.  But what about the millions of Canadians on the outside looking in at an increasingly aloof and distant, inaccessible legal system that is becoming more unaffordable with the click of every billable hour?

Kopyto Files Appeal

Are we chopped liver?  Is it not our tax dollars that pay their salaries?  Aren’t the courts a forum for debate of fundamental issues and enforcement of personal rights?  If you’re sued, you are compelled to go to court.  How can you defend yourself if you don’t have a house to mortgage to pay your lawyer’s fees? Are the courts only for the rich to settle their differences?

The B.C. Government is not the only judicial party that can draft a Notice of Appeal from a decision that it disagrees with. The elitist legal system, to its regret, has also taught Harry Kopyto that skill.  He learned well.  And now, he is already exercising that lesson with respect to Wilson’s decision dismissing his case. An appeal from Wilson’s decision will be filed momentarily.

The Wilson decision, decided on grounds of substantive issues and not technicalities, gives the higher appeal courts the opportunity to review these very same issues.  Wilson represents the views, opinions and judicial outlook born and bred in the professional circles from which she has emerged and that are deep in her DNA.  It is far from clear that the Court of Appeal and the Supreme Court of Canada will not wish to consider the integrity of the judicial system itself and not only the pressure of narrow interest groups in dealing with Kopyto’s appeal.

There is a vast legal system in Canada that needs to be continuously legitimized, especially at a time when most people can’t access it. A tenacious legal struggle combined with a supportive movement of the public and broad awareness of Kopyto’s case can make a breakthrough in Ontario as Vilardell did in British Columbia. Not all judges at all levels feel comfortable living the lie.  Some have bigger fish to fry.

Stay tuned. The last chapter in Kopyto v the Law Society has yet to be written.


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