Appeal Court Throws Kisses to its Law Society Dance Partners

Reminder:  This coming Monday (January 7th 2013) is Harry’s next appearance before the Law Society’s Hearing Panel. Join us at 9:30 a.m in the Museum Room at Osgoode Hall (in downtown Toronto). More details here.


Harry Kopyto’s appearance in the Ontario Court of Appeal on November 26, 2012 resulted in a sharp clash between Harry and the three-judge Panel.  The Law Society (LSUC) lawyers opposing his appeal were not even a factor.


Most Astonishing Was the Hostility

You know the story.  Kopyto’s argument is that competitive pricing for legal services was sacrificed when lawyers took over their competing paralegal profession in 2007. This resulted in hampering access to affordable justice which is contrary to the constitutional duty of the Province to maintain and extend access to justice. The design of the Access to Justice Act, as the takeover law was called, is therefore unconstitutional. And because it is unconstitutional, Harry should not be required to prove his good character in order to continue to work as a paralegal to a Law Society Panel appointed under that Act.

Kopyto’s ascent to the lofty heights of the highest court in Ontario was his third attempt to make this point.  The LSUC Panel judging his character dodged the issue by referring him to take his case to a court. They ruled they were not “competent” to question the constitutionality of the very law that appointed them.  So Kopyto did take it to the courts. However, in her astonishing decision, Superior Court Judge Wilson ruled that the courts could not question the Law Society’s conduct nor the impugned law itself! The LSUC could do no wrong!  So Harry appealed her decision to the Ontario Court of Appeal still asking for very little—just the right to have a hearing.  Hence, his appearance before the Court of Appeal on November 26. 2012.

The stakes were high. Kopyto’s analysis challenged some key pretences of Ontario’s judicial system—that affordable justice was equally available to all and that the Law Society served the public interest instead of the financial interest of a monopoly of lawyers over legal services. Kopyto also pointed out that the Law Society made legal services less affordable by cutting the paralegal scope of permitted work to the bone.

Close to 35 supporters of Harry had flooded the courtroom hoping to see justice done by the apex of the judicial elite in Ontario. But it was not to be.

Most outstanding was their hostility. What had Harry done to piss off this bench of judges?  Could it be that these privileged paragons of Big Law, supposedly capable of intricate legal reasoning, objective analysis and fairness, had already closed their minds to the merits of Harry’s appeal before he even spoke?  Laskin and McPherson (Giselle did not participate verbally in the court exchange) expressed an overtly hostile and cynical attitude that became evident as Harry was getting into his argument. It was obvious from the beginning that these three judges did not care to hear him at all.


Laskin Strikes Out as Kopyto Hits Home

Laskin, chairing the Panel, asked Kopyto why he didn’t serve a notice on the government that he was challenging the constitutionality of its laws. Kopyto responded by pointing out that he did. He referred to his Notice of Constitutional Question filed before the LSUC Hearing Panel. He also mentioned that his Claim specifically referred to the Notice of Constitutional Question which was addressed to both the Ontario and federal governments.

Silence from the bench. It was embarrassingly clear that Laskin had not even read the material.  If he had, he would never have asked that question.

Then, Laskin lobbed another ball at Harry–“Don’t you agree that somebody should judge the competence of paralegals before they march off into the courts?”  Once again, Laskin was way off base. Kopyto had always favoured joint public and professional control over the paralegal profession. Kopyto only opposed control and regulation of paralegals by their competitors; that is, the lawyers who elect the Law Society Benchers. Kopyto made his point clearly and simply: “Of course paralegals should be regulated, but why should paralegals be regulated by their competitors? Why place them under the control of a competing profession which has its own adverse financial interests? Why place them under the control of lawyers who have already reduced the scope of services that paralegals can provide so that they won’t compete in those areas with lawyers?”  Again, silence from the bench.

In his concise and forceful presentation, Harry emphasized the importance of the Vilardell v Dunham case decided by British Columbia Court Judge Mark McEwan earlier last year.  He ruled that provincial government rental charges for using courtrooms were unlawful. Judge McEwan also ruled that poorly designed government measures that tended to frustrate or hinder access to justice were beyond the jurisdiction of the provinces whose duty under the British North America Act (part of the Constitution) was to maintain and expand judicial access.  “Where is the evidence that the Law Society’s takeover hampers access?” asked Laskin.  Kopyto retorted, “The effect of the takeover legislation has driven the cost of legal services higher.  The LSUC took away areas of work [for example: family law, real estate, incorporations] that paralegals had practiced for decades at more affordable competitive rates before the takeover law restricted them solely to four narrowly defined areas of work such as traffic tickets and Small Claims Court.” Once again, Laskin, still looking to make his first valid point stick, seethed and said nothing.


Silence From the Bench as Kopyto Deflects Powerplay

But Laskin didn’t give up so easily.  “So where is the evidence that access to justice has been restricted?” Laskin asked.  Harry’s response: “Some things are too obvious to have to prove. Justice McEwan said that only in a courtroom would a judge ask for proof that raising the price of a service would not limit access to it by those who couldn’t afford the higher price.” And Kopyto also reminded Laskin that the rules of the Court prohibited evidence to be cited in a Statement of Claim leaving that for examinations or a trial. Not doing too well, Laskin sat silent and scowling.

At this point, McPherson, in a joint powerplay, came to Laskin’s rescue. “The Ontario Government has given the Law Society the power through the Access to Justice Act to rule over paralegals.  How can you attack the Law Society for doing what they are authorized by the law to do?”  Kopyto responded “But the law is unconstitutional and if the law is ruled unconstitutional under my claim, then the Law Society’s conduct under the law is also unconstitutional.”

McPherson sat silent for a moment and then attempted a retort.  He told Kopyto that it wasn’t his rights that were being denied under the law that he was challenging. It wasn’t Kopyto who was being denied access to justice. Where did Kopyto get standing to make his claim?  Until that point, there had never been an issue as to whether Kopyto had standing to bring his claim. The fact is that Kopyto was being judged in his good character hearing under a law that was based on an unconstitutional scheme.  All parts of the law were integrated with each other and Kopyto had the right to challenge an unconstitutional law that he was being forced to submit to in his good character hearings. The law cases dealing with standing do not require you to tear apart a law that is constitutionally unsound into valid and invalid parts when the different parts of it are integrated into each other. This was well understood by the Panel that is judging Harry’s character. They never questioned his right to raise the constitutionality of the Act.  Nor did Judge Wilson whose decision was under appeal.


Laskin Hits Below the Belt

At this point, the puck passed back to Laskin.  He had not done well. All the points that he had raised were answered simply and clearly. He was angry. That is when he struck below the belt.  He attacked Kopyto frontally. He accused him of initiating the claim to avoid his good character hearing. This scurrilous attack by a senior member of the highest court in Ontario on Harry’s motives was astonishing. Kopyto protested this personal attack on him as inappropriate in light of his good faith commitment to access to justice over decades.  However, no one was listening…

Laskin’s comment showed what was really behind the court’s hostility. The good character hearing is rambling along. There is nothing in Harry’s claim that could possibly block the Hearing Panel from completing its job.  No injunction was requested by Harry in his claim. It would take years in any event for the claim to work its way through the courts, long after the Hearing Panel had rendered its decision on Harry’s moral character. So why such a vicious and irrational attack on Harry?

The Court of Appeal judges knew that if they decided in Kopyto’s favour, even when the issue was only his right to proceed with his claim, it would amount to taking sides with Harry against the Law Society. Harry’s allegations, after all, unmistakably amounted to an attack on the Law Society for promoting the self-interest of lawyers by eliminating competitive pricing. It struck at the heart of the pretences of the LSUC.  The Appeal Court does not want to give Harry a platform to shout: the Emperor has no clothes!

A decision in Harry’s favour would have sent tremors throughout the Legal Establishment. The Court of Appeal judges knew this well. After all, they are kissing cousins with the Law Society breathing the same rarified air of the austere Osgoode Hall.  This is where they both hang their hats. That’s why the Court of Appeal decided to send hugs and kisses to their dance partners across the hallway on November 26th.


Kopyto Heads to Supreme Court of Canada

At this point, the Court recessed. They came back twenty minutes later. Laskin, who chaired the Panel and spoke for it, read a brief statement which did not refer to Harry’s arguments at all.  He simply dismissed his appeal on the basis that Harry had no chance of success. No explanation.  No justification for the decision.  No response to any of Harry’s arguments. No consideration given to the legal cases that Harry referred to.  Just a bare denial and an order to pay costs in the amount of $3,000.

A spontaneous conference of Harry’s supporters took place in the hallway outside the courtroom after the case was heard. The unanimous opinion was that the judges never really considered the merits of Harry’s position.

Those who attended to support Harry remain combative.  Although Harry lost his Ontario appeal, the battle is far from over. By the time you read this article, Harry will have already filed an application for permission to appeal the decision of the Court of Appeal to the Supreme Court of Canada.


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