Holy Cow! Can this really be happening?
Blowing Kisses to Each Other
After five years of gut-twisting, body-busting, hate-inducing contempt-filled no-holds-barred megawar on the terrain of the Law Society’s hearing room on the second floor of Osgoode Hall, we pinch ourselves and ask again: Is this happening? No, we answer, it can’t be happening. It must be a dream and yet…and yet…we rub our eyes. It’s really happening!
There they are, Margot Blight, hit-person brought in by Big Law for the kill and Harry Kopyto, shit-disturber par excellence… For 50 torturous days, lunging for each other’s throats… are they really blowing kisses to each other now?
How suddenly our deepest-held beliefs can be shattered as reality turns on a dime. Who would have believed that Margot Blight, brandishing her bronze scimitar inches away from Harry’s professional neck for years, ready to draw blood―in an instant of timidity―would greet him at the opening of another day of hearings into his moral character with heartfelt congratulations on his sporty new haircut? And who would believe that Harry’s spontaneous response, “I hoped you would notice,” would draw a smile from the usually disdainful paralegal panel member, Michelle Tamlin? What, indeed, is going on? What has made these erstwhile sworn enemies competing in the degree of urgency of their mutual dislike suddenly drop their weapons and, in place of extreme fighting, gesture to each other almost lovingly?
Two Strands of a Narrative Drawn Together
Listen carefully dear reader. Take a sip of your drumbuie and relax. Everything will soon be illuminated. But it will take a while…
There are two strands of narrative that have drawn together over the passage of time that have transformed an era of violent pacification into an era of a delicately balanced peace. One strand, you are already intimately familiar with. After five years of hearings, at a conservatively estimated cost to the Law Society of close to a million dollars—yes! That’s how much it costs the Law Society for 100 days of hearings—Law Society Panel Chair Margot Blight found herself plummeting into the depths of her worst possible nightmare. Everything that she had done up to the present stood to be garborated. It would be disaster city, especially for a case- management maven eager to climb the career ladder to success by slaying the Kopyto dragon.
It is all because a new character witness for Harry suddenly surfaced this summer—a new client of Harry’s who Blight, by pure chance (or fate?) was litigating against in her day job with the firm of Borden Ladner Gervais. How could she possibly avoid an appearance of bias in judging, as Harry’s Panel Chair, the evidence of Mike Giftopoulos, whom, only weeks earlier, she was skewering in proceedings before the Human Rights Tribunal of Ontario? And how could she possibly justify her biggest impulsive faux pas to date—keeping her retainer with the client that Mike is fighting, within her firm, thereby searing an unmistakable image of a conflict of interest into the perception of any neutral observer?
Harry’s motion to have Blight resign from the Panel because of an appearance of conflict and bias was first raised on August 29, 2013 and then argued formally on October 15, 2013 in a motion which the Law Society prosecutors responded to with their most effete performance to date. What would Blight decide? Would she stay or would she go? That question was little more than rhetorical. Resignation, even in the face of an overwhelming legal case against her staying on, was never an option. It would be like throwing herself off a cliff. First, five years of protracted, expensive hearings peppered with numerous motions before three different panels would be erased in an instant. It would amount to an unprecedented victory for Kopyto and a powerful kick in the derriere to Big Law’s Cosa Nostra. It was unthinkable.
Shootout at High Noon at the Osgoode Corral
For Blight personally, it would amount to a career-destroying event that would haunt her professional life—the sheriff brought in from the outside to clean the town, herself shot down in a shootout at high noon at the Osgoode Corral. This was the scene that unfolded to Blight’s unimagined horror starting in late August, 2013 until the events described below offered her a glimpse of hope.
In a sense, Blight’s conflict was inevitable. Blight’s clients and professional commitments are the polar opposite of Harry’s. Over the years, it’s no surprise that Blight’s day job would entangle her in a legal battle with one of Harry’s clients. She, representing bosses; he, representing workers. She defends discriminatory practices; he represents the victims of such practices. She represents Big Government and Big Business; he represents working people.
But the passage of time has also impacted on Harry’s world. Here, dear readers, comes the second strand of narrative that leads to explaining the current appearance of a lovefest. Harry applied to be grandparented as a paralegal in 2007 when the lawyers, who run the Law Society, like a school of hungry sharks, swallowed whole the school of competing paralegal minnows wiggling in their puddle.
That was seven years ago. Now, turning 67 this month, Harry is ready to move on. Not quite ready to disappear from the legal landscape, mind you, where he has developed a fondness for the milieu of adversity that keeps him chugging, but still seeking a change of scenery.
A Lengthy Moment of Silence
A hint of possible salvation for Margot Blight occurred during the first of the four November hearing days into Harry’s moral character. While being cross-examined by the Law Society lead prosecutor, Ms. Heakes asked Harry if he would adhere assiduously to the Law Society Code of Conduct for paralegals if he were to receive his licence to work as a paralegal. To everyone’s surprise―no, that’s too weak a word―to everybody’s shock, including perhaps his own, Harry responded that he would promptly return the licence. He would, of course, continue to assist persons who could not afford the services of lawyers. This was a bold proclamation that struck at the heart of the Prosecutor’s argument that the test of good character is rule obedience. He would continue to promote access to affordable justice—a principle that the Law Society purports to honour but breaches in practice through its monopoly over legal services – but he would no longer seek to work as a paralegal.
There was a lengthy moment of silence as the realization of the implications of what Harry had said dawned on all the players in this long-lasting multi-act drama.
Harry felt that he had finally laid it all out―he was not fighting for his right to work. He was participating in the hearings to defend his moral character and conduct. Financial self-interest was not his motivation. “The only reason I am still working as a paralegal is because of your hearings questioning my moral character,” he told his persecutors—oops!—prosecutors.
Prosecutor Heakes went ballistic. What are we doing here? She thought, having in mind her puppetmasters, some of whom now occasionally crawl out of their darkened anterooms, discreetly occupying the hearing room’s backseats to form a cheering section for Ms. Heakes.
Blight Needs Exit Strategy
For the Law Society, the hearings have been a tragedy from a cost-effective point of view. Harry’s has been one of the longest, if not the longest character evaluation hearing ever. Harry has been able to work as a grandparenting paralegal throughout the seven year stretch. The Law Society estimates 20 more days of hearings. Heakes, used to character-profiling Harry as driven by his financial self-interest, was flummoxed by Harry’s unexpected rejection of the prize of a licence. How could he be fighting for something he does not want? Why has she spent five years denying him a licence that he will just toss back in her face if awarded it with a “Thank you Ma’am, but no thank you.”? “Curiouser and curiouser,” as Lewis Carroll wrote.
But it was Ms. Blight, in deep need for an exit strategy out of her intractable entanglement, who saw her chance to catch the ball. Three weeks earlier, she had been roasted by Kopyto during his recusal motion with a dozen citations of cases that placed her squarely in the cross-hairs of conflict and bias. As suicide was not an option, she had no choice but to stay on as captain of the Panel’s sinking ship. A one- line angst-filled announcement that she had decided to remain on the panel was made a week before the first November hearing date. She won’t go? Even though they realized Blight had no choice but to stay, everyone was still shocked. What reasons could she possibly concoct to justify staying on? She gave no reasons. There still are no reasons. Three months after the recusal motion, there still are no reasons. A half-hearted promise was made during one hearing that the reasons have been “half-written.” Harry has been too polite to press her, God bless his sensitive soul. But, still there are no reasons. And, Blight hopes fervently, there won’t be a need for reasons.
Hush is The Word
Deep inside, everyone knows. Any excuse by Blight for refusing to admit her appearance of bias and conflict will never wash. It will never wash with the public. It will never wash with the Law Society’s own Appeal Panel. It will never wash with the courts, if it has to go that far. It does not even wash with Blight―that’s why there are no reasons.
Blight is a dead person walking. She imitates normalcy but a stale smell of decay is in the air. The hearings passed their best before date long ago. Her anxiety during the first November hearing date was scarcely masked. Everyone knows she has been defeated, by herself mostly. Everyone knows, but no one says. Hush is the word. There is a sadness as Ms. Blight clings to her pretences. She acts self-assured, but is no longer as imperious as in the past. In formal control perhaps but―in reality―she is only rolling with the punches. The sharpness is gone. She is no longer the ebullient Panel Chair who once boldly invited Harry to bring a bias motion when he protested one of her many unfair rulings. The edge isn’t there. Notes are taken. Comments made. She is still chatty. But everything she does is perfunctory. Everyone is weary, just going through the phases. Blight is mortally wounded and she knows that everyone knows it even as the charade plays out its last faltering steps.
Harry’s spontaneous and unexpected utterance however, about no longer about seeking to work as a paralegal, suddenly resuscitated Blight’s career. She was cast a lifebuoy. She immediately told Kopyto that “We hear you Mr. Kopyto,” and asked Kopyto if he might be “interested” in resolving the hearings by exercising a new option. She asked him whether he might “consider” having the issues before the panel resolved by mediation, of course without any of the present Panel members being involved. After all, she argued, “Why continue the hearings if you would just return your licence? Would you consider mediation?” Kopyto, who is often more compliant than he appears to be, responded gently that he would be open to the process. And then, just as quickly as this exchange emerged, it slipped away, undefined as to who or how the initiative would take place. The hearing’s agenda resumed as this significant conversation submerged into the trite cacophony that echoes in the Museum Room where the hearings are held.
Over the next two weeks from November 12th and 13th until November 28th, the subject was not raised again. It was as if it never happened. Blight, in despair, had heard nothing further regarding her proposal to Harry to mediate. With her judgment clouded by anguish, she concluded that Harry, whose character she still fails to understand after hundreds of exhibits and over 50 days of hearings before her panel, must have decided not to exercise the option. It would be too good to be true if he did, she must have thought.
Heakes Burst Into Tears
But then something strange and unexpected happened. Just before the hearing was called to order on November 26, 2013, Harry politely reminded Prosecutor Heakes of his plan to return his licence if it was granted. His intent was to encourage her to withdraw the proceedings and acknowledge his good character. Heakes, driven into a state of near trauma by that reminder, lost it. She burst into tears in front of him. Her voice pitched angrily, her arms waving in front of her, she accused Harry of wasting the money of “hard-working lawyers” by continuing the process, unable to grasp that Harry, at this stage, was defending his character and not his livelihood. She self-righteously announced she would immediately bring a motion against Harry for “abuse of process”. And she stormed angrily out of the hearing room back to her office to find the legal authority for such a motion, delaying the start of the hearing by more than half an hour.
Susan Heakes then returned to the hearing room, more composed, even triumphant. She slapped a legal case for an abuse of process motion truculently on Harry’s desk. She was still in a huff and puff as the panel finally marched into the hearing room to assume their positions at the front of the room.
There was anticipation in the room. Something was going to happen but no one knew exactly what or when. It was a strange feeling. Everything appeared ordinary on the surface, but not really. After the usual morning greetings (“Would everybody please turn off your electronic devices, etc…..”), Ms. Blight asked if there were any preliminary matters that needed to be disposed of before hearing the evidence of Harry’s witnesses. Harry stood up and indicated that he had five additional witnesses on top of the 32 already identified that he wanted the Panel to allow him to call.
That was it. That did it. That set everything off. Heakes jumped out of her chair, waved her legal case in her hand and announced she wanted to bring an abuse of process motion against Harry for continuing the hearing, even seeking to lengthen it with more witnesses, when he was just going to return his licence if he was awarded it. Kopyto stood up to defend himself. He told the panel he had no choice―he had to defend his character.
Blight’s Brain in Overdrive
Ms. Blight, her brain in overdrive with all wheels whirling at breakneck speed, told Harry that she thought he was not interested in mediating a solution that would allow him to clear his character but no longer require him to “endure” more hearings. Kopyto said he was always open to discussion but that, when he raised the issue with Ms. Heakes, “There was an unfortunate reaction” without specifically describing Heakes’ crying and shouting fit. Now all aglow, Blight turned to Heakes and asked her, in a tone which anticipated a positive response, if she was interested in mediation which could result in terminating the panel’s mandate and stop any further hearings.
Heakes—who had always gone for the jugular, refusing any compromise with Harry over five years—said yes! Yes, yes, and yes―such a sweet morsel of a word, dear reader, to Ms. Blight’s hungry ears. A collective sigh of relief rose from the panel as that three-letter word, “yes” reverberated through the hearing room marking the first time that the Society had been clearly placed on the defensive, with Harry―apparently―in the driver’s seat. And then, as the hearing adjourned for its morning break, within minutes, the newly appointed head of the Law Society Hearings Tribunal, David Wright, appeared like a Genie out of a bottle to arrange the mediation, presently scheduled for January 15, 2014 before Bencher Clayton Ruby.
What, dear reader, you ask has brought these intractable proceedings to this dramatic turning point? And why is it happening now?
Of course, Blight’s unenviable dilemma of staying on the panel in the face of apparent evidence of conflict and bias cannot be ignored by the prosecution. The panel’s future proceedings are now fatally flawed. The Law Society wagons are circling around Blight to protect one of their own. The two other panel members could not carry on without Blight in light of the complexities of the hearings. A fourth panel starting afresh would be unthinkable. Whatever reasons Blight may come up with to rationalize her refusal to recuse herself would also be perceived as self-serving and easily overturned on appeal as there can be no conceivable justification for a judge to appear fair in evaluating the evidence of a former opponent while her firm is still opposing him. Think of the unprecedented spectacle of Mike Giftopoulos testifying before the same lawyer who attacked him only a few weeks earlier, now wearing her impartial judge mask.
Witnesses Pound Nails Into Law Society Coffin
As well, the parade of witnesses who have testified before the panel during the November dates have provided convincing, dramatic, credible testimony that coincides almost completely with Harry’s own 18 days of personal testimony. Each witness pounded the nails even deeper into the coffin that the Law Society’s case is entombed in. Heakes has failed utterly to build the Law Society’s case against Harry. She has barely cross-examined his witnesses and one key witness, Reynel Lewis, who testified half a day, was asked no questions at all. (In a rare moment of profound irony, Reynel asked Ms. Blight what was the status of his Superior Court case that he had testified about. Ms. Blight directed him to seek advice on the matter from Harry Kopyto, an act that would amount to counseling unauthorized practice.)
The LSUC’s case is exclusively based on innuendos and distortions that are apparent to anyone who has witnessed their evidence torn to shreds by Harry’s clients. Did he give you receipts? Did he advise you that you would have to pay costs if you lost? Did he tell you that he didn’t have insurance coverage for your case? To Harry’s clients, who could not afford to place one foot into Ms. Blight’s carpeted Bay Street office, these absurd questions bounced off like toy darts.
Harry clients have come to Harry’s rescue. They have told the truth. Harry’s defence is now established in all fundamental respects. Harry’s clients were all amazingly brave and forthright. They have changed the optics. The Law Society is now on the defensive. At least one panel member has let it be known that they have had a major impact.
The tables have turned. The motion for abuse is abandoned. Efforts to block witnesses who have attended the hearings from testifying have melted in the staid air of the Museum Room. The rush to force “timely” hearings has dissipated with a lengthy hiatus from November to February, 2014, if further hearings are needed, “to allow mediation to bear fruit.”
For now, the rush to nail Kopyto is on hold. Hope and Peace are slow-dancing together on the hearing room floor in a loving embrace. But uncertainty is scowling in the corner, pacing impatiently, ready to cut in and twist the plot again.