March 4th ― D Day!

The Cast

If there was one single day that exemplified the essence of the Law Society’s bias and conflict of interest in judging Harry Kopyto’s moral character, it was Tuesday March 4, 2014.  Come join us to review the theatrical production that took place.

There was Harry at the podium―stubby and unshaven―shirt hanging out over his pants, bluntly questioning his witness, as usual without notes.  There was Panel Chair Margot Blight, demur and affable, with the usual smile pasted on her face except for occasional flashes of anger and a nervous habit of chewing her fingernails that reveal her real mood. She was sitting between her two fellow Panel members, stern paralegal Michelle Tamlin and public appointee Baljit Sikand, always ready to soften Blight’s rough edges.    There were also Law Society counsel, Susan Heakes and Anne Catherine Dionne. They were sitting to Harry’s right, ready to pounce whenever opportunity allowed.  And there was Mike Giftopoulos, Harry’s character witness, fidgeting uncomfortably at the witness table in surroundings that were clearly unfamiliar to him.

The stage was set. The Panel was straining to create an atmosphere of dignity in Osgoode Hall’s austere Museum Room. Everyone’s role was defined.  Nothing appeared amiss. It was just―on the surface―one more day out of dozens and dozens of other hearing days.

Each day, Harry’s moral character is the subject of detailed dissection by the gatekeepers of moral rectitude, who decide who can be an advocate in Ontario’s courts.  Everyone knows what the denouncement will be.  However, the masquerade party still has a couple of days to go before the masks are doffed.

Turn the Clock Back

Turn the clock back a few months.  A different stage is set.  This time, Giftopoulos is not a witness.  He is a teacher for a Catholic Separate School Board. This time, Margot Blight is not a judge. She is a lawyer for Canada’s largest law firm ensconced at a vertigo-inducing height in her office in a skyscraper on Bay Street.  And there is Harry Kopyto, widely perceived with some legitimacy as a thorn in the side of Big Law, chatting to a new client on the phone in his paper-strewn office.

Yet there are invisible threads that have knit together these three players’ both past and present roles.   Mike emerges into this scene as a disabled employee of the school board. He is denied the right to teach full-time despite clearance from his medical team.  Blight acts as counsel for the school board. She is attempting to justify its refusal to let Mike work full-time by smearing him as aggressive and unstable.  And Harry, God bless his soul, has just told Mike in his first phone call from him that he would represent Mike on principle without charge in a human rights complaint already filed by Mike against the school board.

You Want Irony?

You want irony?  How about double irony?  Harry has no idea who is representing the board against his client Mike. And, indeed, who is it?  None other than Margot Blight, Hearing Panel Chair at his good character hearing who will decide if he qualifies to be a paralegal.  What a coincidence that she is also the legal architect of the school board’s defence to Mike’s complaint. And Blight too does not know that her self-represented opponent, Mike, will soon be a witness for Harry testifying before her in her role as judge before the Law Society.  Such are the twists and turns that the Fates spin in determining the destiny of us mere mortals.

It is true that Harry soon discovers who represents Mike’s school board against Mike’s charge of discrimination against it on grounds of disability for refusing him the right to work full-time.  And it is true that Margot Blight, upon being told of Harry’s retainer by Mike, immediately passed on the file to her colleague down the hall at her firm’s opulent digs to create an appearance of distance (Get that?  Appearance, not reality!) from Mike’s case. And it is true that Mike volunteered to be a witness to Harry’s character before the Blight Panel. Ergo, the transformative triangulation of the relationships and roles resulting in the current scene of this drama played out in the Museum Room on March 4th.

Everyone Has a Back Story

Everyone has a back story.  Take Blight. Most judges have not acted as aggressive advocates against a witness appearing before them testifying to the same matters in which they recently were in conflict. (They would recuse themselves.) Nor do most judges continue to judge witnesses while their firms keep their retainers with the parties acting against these same witnesses. (They would pass the client on to an outside firm.)  But Ms. Blight is not just the judge of any tribunal. This is a special tribunal.  This is a tribunal unlike all other tribunals. This is a tribunal that does what it wants. This is a tribunal that makes its own rules. This is a tribunal that can do no wrong. This is a tribunal that is sealed from social reality and saran-wrapped tightly in its own legal rationales.  This is the theatre of the absurd par excellence.  Welcome to the wondrous tribunal appointed by lawyers of the Province of Ontario to judge the moral character of grandparenting paralegal candidate, Harry Kopyto!

If you have been wandering lost in a desert for the last four decades, cut off from all human contact, you may not know that Harry is one of the most defiant and celebrated targets of Ontario’s legal establishment. For five of the last seven years, since the Law Society assumed governance of the paralegal profession, he has wrestled to the ground two previous panels judging his moral qualifications to act as a legal advocate. The Blight panel has been in the saddle on this wild bronco ride for well over three years.  That’s close to 60 hearing days for the Blight panel alone. Celebrated case management expert Margot Blight was appointed for the kill by the dons in the Law Society’s inner sanctum.  Why should a touch of conflict of interest or a trace of an appearance of bias set their agenda askew?

They have pissed away a million dollars going after this guy. Are they now going to allow him to rewrite their script? After all, this is their production, their rules, their territory and their reality filtered through a collage of legal gobbledygook twisted and bent to suit their plotline.  No silly principles of fairness and neutrality will sway them from playing the roles in which they have been cast.  Blight wants her Oscar and the fame and benefits it will bring her in the circles of the Law Society for her performance in the saga of the Law Society v. Harry Kopyto. She wants to be toasted in the post-award parties for slaying the Kopyto dragon.  Will she get there?

Acts One and Two

Harry Kopyto has tried to trip her up.  In Act One, Harry asked her to resign in late August last year because of her conflict and appearance of bias in dealing with Mike both as a witness and opponent. She ignored the Adjudicator’s Code of Conduct that required her to make a personal decision that would allow the other two panel members to respond.  Too much uncertainty.  Instead, she bound them together to her by ordering Kopyto to bring a formal motion before the Panel as a whole so she could respond on their behalf with one voice.

In Act Two, the recusal motion is brought by Kopyto on October 16, 2013. Kopyto cites an armada of caselaw which leaves the Law Society’s tepid defence of Blight, battered and bruised.  Blight knows that her recusal would mark a historic defeat for the Law Society, so Blight denies the motion in early November and announces that she would stay on.  Mysteriously, she gives no reasons or explanation whatever for her totally unjustified decision.

Acts Three and Four

Now, we are into Act Three―a replay of Waiting for Godot.  Almost seven months since Harry blew his whistle on Blight, five months after the formal motion for recusal, we are still waiting for her reasons. And waiting.  And waiting.

Oh yes―there have been promises galore!  At one hearing in November, Blight announced proudly that the reasons were half-done.  At another hearing last month, she claimed it was all written out by hand on 10 pages and just needed to get typed up. Later, she announced it would be released that day or the following day or, in any event, before March 4, 2014 when Mike was scripted to testify before her. We are still waiting, Ms. Blight.  Ms. Blight?  Ms. Blight?  Are you there?  Can you hear us?

Act Four―Harry Kopyto brings another motion, two weeks before Mike’s scheduled appearance as a witness for Harry.  The motion―egads!―asks Blight to render her decision for not resigning from the Panel before Mike testifies.  He wants Mike to be able to appreciate why he is testifying before a former counsel for the School Board, still represented by Blight’s firm, and the author of the false charges against him.  Maybe, her sweetly reasoned words will allay his fear of her bias in assessing his testimony…

Blight reacts, Holy Cow!  How dare you, Mr. Kopyto, bring such a motion?  Don’t you know witnesses have no rights. Don’t you know Mike agreed to testify knowing I was the Panel Chair? (You see, it’s Mike’s fault that Blight appears biased.  So suck it up, Mike).

The Law Society lawyers start chanting: Hit him with costs!  Hit him with costs! He brought his motion to embarrass you. Hit him with costs! And Blight replies―yes I am embarrassed! I will award costs!  I will award costs!  I will award costs! And so, in exquisite harmony, the prima donna and the prosecutorial chorus meld together, singing instinctively with venomous anger. No need for rehearsal. They each know their lines by heart.  And poor Harry is now being asked by the Law Society to pay $570 for his insolence in bringing the motion to have Blight give her reasons which she should have done months earlier.  Contrary to the famous maxim, it appears that justice does have a price in the Law Society court.

A Complex Character

The author who wrote Blight’s script created a character not without some complexity.  The main thrust of her persona is clear―she gets results.  Remember that establishment lawyer, Al Gold, the casting director for the Benchers who selected her for her role, chose her with care.  Nor did she commit to chair Harry’s hearing panel lightly.  Al told her that two previous panels made up of ingénues could not live up to the demands of their roles after a few days of rehearsal. He needed somebody who could swing an axe and not squirm at the sight of blood.  He also agreed to give her an audition, first allowing her to rule on a constitutional motion brought by Harry before asking her to commit to the job of chairing a full hearing. He equipped her with a supporting cast of two obsequious panel members―one a total novice at her first hearing and the other, a Liberal Party booster with a record of never dissenting―to provide unswerving backup. So when Blight finally agreed to take the role, a deal was sealed which could not be casually severed by a resignation, especially as the production was now nearing its end.

There is a need for Blight’s character to appear neutral.  This is a problem because the conflict and appearance of bias is so egregious in Mike’s case.  The test for an appearance of bias requires proof of recent involvement―in Mike’s case, Blight was opposing him right up to the week he agreed to become a witness for Harry at his good character hearing. The test for bias has to involve a matter of relevance.  The Law Society has already conceded the relevance of his evidence to Harry’s case.  Moreover, Blight’s role in her day job as lawyer for the Board gave her access from the school board to all kinds of information about Mike.  She also penned scandalous attacks on him falsely alleging that he was unstable and aggressive. These were all lies justified to refuse him full-time work without any medical evidence.  So appearing impartial was an insurmountable obstacle in these circumstances.

Impulsive and Devious

Blight’s role has further problematic colourations of character―an imperious, overconfident manner with a strong streak of impulsiveness. This explains the haste with which she thought she washed her hands of the Mike Giftopoulos affair by handing it over to a junior down the hall from her office.  The result was exactly the opposite. Blight became locked into a conflict of interest by her rushed decision as surely as if she and Mike were released into a Roman arena in a fight to the death.  Her personal financial interest and her firm’s financial interest became cemented to the firm’s ongoing retainer with the board in its ongoing fight with Mike.

Blight’s claims to have built a firewall between herself and the rest of her firm still representing the school board is bizarre and unheard of. While lawyers have taken measures in the past to avoid conflicts by limiting the passing on of information among them within a firm, there is absolutely not a single precedent of a judge every trying to do this to avoid a conflict.  Was Blight desperate and unhinged when she announced her firm would keep the file, or was she merely overconfident and feeling invulnerable?  We may never know (or care) but it was a patently indefensible act that reflects a fatal flaw written into Blight’s scripted character.

Yet another quality written into the character portrayed by Blight is a capacity for devious chicanery. This was evident from the lack of candour displayed by Blight in postponing her decision on recusal until after Mike gave his evidence.  Bad form, Ms. Blight.  However, if she was hoping to mine for gold nuggets in his testimony to bolster her case for not resigning, the pan at the bottom of the sluice box came out empty.

Mike Tells His Story

Mike had a story to tell. And tell it he did.  He had a heart attack in 2007. He convalesced, he wanted to return to his position as a guidance councilor with the school board. But Mike had a history of speaking out against the nepotism that famously infects dealings between the separate school administrators and the teachers’ union, OECTA.  The head of Mike’s union local―a brother-in-law of the school principal―did nothing to block Mike from being shafted left, right and center, after returning to work.

This is what the Board, with OECTA’s complicity, did to Mike over the next four years. He was blocked from his old job as a guidance counselor. He was dumped into a tiny office.  He was overloaded with demanding workloads without accommodation.  No re-entry meetings. No support networks. Negotiated caps on his class sizes were blown.  No disability councilors He was obliged to work part-time when his doctor indicated he could work full-time at his previous position with reasonable class sizes. He exhausted his sickdays. He suffered a salary reduction and eventually was driven into a depression.  In this toxic environment, he had to take a break.

But Mike was no quitter. He got medical help.  He got better, and then, he returned to work with clearance from his doctors to give him full-time hours with accomodation.

It wasn’t to be. The board rejected his doctor’s opinions. They gave no reason. They forced him to work part-time causing a serious loss in take-home pay. When he decided to work full-time by assisting in non-classroom activities even with part-time pay, the board threatened to call the police to remove him.  OECTA promised to file a grievance―it never did.  Mike was alone, isolated, denied full pay and couldn’t find a lawyer to represent him.  But he wanted to fight back.  And that’s when he filed his complaint against the board with the Human Rights Tribunal alleging discrimination on the basis of disability.

You know the rest of the story. The board hired Blight. Mike hired Harry. Then, suddenly, the board’s case crumbled into dust last year when the board did an about- face and rehired Mike full-time at the start of the school year because they faced a shortage of teachers.  The façade of Blight’s false accusations on behalf of the Board were exposed starkly by reality.

When Harry attempted to introduce as an exhibit the damning written response prepared by Blight to justify the Board’s discriminatory conduct to the Human Right Tribunal, Blight faced a dilemma.  On one hand, she wanted to exclude it because it constituted critical evidence of her indisputable role in attacking Mike and conceptualizing the Board’s now clearly discredited efforts to mask its discrimination. On the other hand, she knew that excluding it would be perceived as a blatant cover-up of her own personal role in carrying the can for the Board in its vicious attack on Mike.  Remember that the Board had rehired Mike for full-time work within a few short weeks of her unfounded efforts to justify refusing him full-time hours.  Blight’s hand was forced.  She reluctantly allowed Mike to identify her written refutation of his claim of discrimination and marked it as an exhibit.  But in doing so, she attempted to trivialize its significance by petulantly telling Harry that she was doing so only because “You are wearing us down.”  Forgive us, Ms. Blight for objecting to your snide comment.  We accept that Harry may have exhausted your patience―he can be exasperating, to be sure―but aren’t judges supposed to deal with the evidence objectively?  Are you denying the relevance of your own attack on Mike’s human rights to Harry’s decision to volunteer his services to his client for free?  Or are you letting your emotions (or maybe your commitment to your client) cloud your supposed neutrality?

Imagine how Mike must have felt testifying before Blight about his treatment by her client.  There he was, his testimony assessed by the very person who defended the board’s discriminatory and arbitrary conduct. Blight could not control herself. She dismissed Mike’s evidence of abuse and discrimination as irrelevant. She blocked him from testifying about what it felt like being opposed by a hot-to-go lawyer from the biggest law firm in Canada―herself. She refused to allow evidence that would detail the precedential value of his litigation. She prevented him from exposing the contradictions in the board’s defence. She stopped him from describing the remedies he and Harry were seeking that would help others.

But Mike retorted. He said he couldn’t fight back without Harry’s help.  He pointed to Harry and said to Blight, “That man rescued me”.  The audience broke out into applause. Blight hushed the audience.  End of story. The curtain went down.

But not before Blight, ever aware of the optics of her role, solicitously asked Mike how he was doing now at work. When he answered he was doing “okay”, she gave him a verbal pat on the head. However, if Mike was any less polite, he could have added that he was also doing okay last September when the Board rehired him without any new evidence of medical improvement.  He could have added he was doing okay months earlier when the Board ignored his doctors’ reports. He could have added he was doing okay when the Board threatened to use force to remove him from school property.  He could have added that he was also doing okay when Blight herself penned her vicious and unfounded defence of the Board’s attack on his character and ability to work only weeks before he was rehired. So if we regard Blight’s concern for Mike’s health as dripping with pretence and hypocrisy, just as much as her pretence to be neutral and unbiased in her assessment of Harry’s character, you will forgive us, dear reader, for our apparent disbelief of Ms. Blight’s sincerity.

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