Don’t Hold Your Breath!

Let’s start by asking you a question. What do the following five people have in common?

One of them is a no-nonsense lawyer often acting for other lawyers in sensitive disputes among partners in Bay Street law firms. She is highly regarded as a “strategic” thinker. She has senior status as a Law Society adjudicator. Another is an aggressive businessman. He is a horse breeder (no kidding) and Governor of the Royal Ontario Agricultural Winter Fair. A third is an ex-criminal prosecutor, now a partner in a major Bay Street law firm—the epitome of happiness outside the gates of heaven for a certain category of lawyers. The fourth one is an ex-cop (the Toronto Police Service as well as the O.P.P.) and is now cashing in on his connections as a hard-driving paralegal who can pull strings. The last is a member of a firm that has a full nelson on the market in Workplace Safety and Insurance appeals. She is a member of the Board of Governors of the Ontario Bar Association, a group that lobbied successfully for the takeover of paralegals by the Law Society.

 

Do You Want to Guess the Outcome?

So, what do all these esteemed personages of standing have in common? The answer is that each one of these five persons was picked by fate (or something more sinister?) to sit on the Law Society appeal panel that Harry Kopyto addressed on October 27, 2015. That was the day when Harry argued his appeal before that body over the decision that he could not work as a paralegal made March 2, 2015 by the Law Society’s hearing panel chaired by Margot Blight.

You can be sure that none of these five adjudicators hang out at the pool hall where some of Harry’s clients spend their Friday nights. None of them shop at Walmart. None of them buy food in bulk. None of them scramble at the end of the month to pay their rent. Yet Harry, famous for upsetting every applecart of the moneyed elites, tried to pry open their elitist minds to allow him to return to the practice of being a paralegal. Do you want to bet on how they will rule on Harry’s appeal? Did you say you want odds?

It wasn’t easy but Harry gave it his best shot. He was buttressed by fifteen or twenty backers who came to judge the panel judges themselves. Harry’s argument? By the time that the appeal date arrived, he had narrowed his grounds of appeal down to two or three points. One was that the Chair of the Panel that ruled that he had poor character was biased. This story has been told many times. We won’t go into the details of the Giftopoulos saga. Enough to say that Chair Margot Blight heard the evidence of one of Harry’s key witnesses, Michael Giftopoulos, while only weeks earlier, wearing her lawyer’s hat, she attacked Michael in a lawsuit in which she represented his employer against him. Blight feebly tried to disguise her ongoing financial interest in the case and hostile role by building a “firewall” with the new lawyer down the hallway in the same firm. This was a transparent maneuver never previously used by a judge. Will the appeal panel degrade itself by validating such a cheap ploy?

 

Chokehold on the Tribunal’s Throat

The other ground advanced by Kopyto related to the chokehold Big Law holds on the throat of its so-called independent Tribunal.

First, let us set the scene. The Law Society has made some cosmetic changes lately in the way it operates the “independent” Tribunal. The Tribunal maintains panels that rule on discipline and admissibility issues for paralegals and lawyers. It now has new digs next door to Osgoode Hall. This gives an appearance of the Tribunal being separate from its masters. There are smaller hearing rooms that limit the number of direct observers at a hearing. They now shunt any members of the public who can’t find an empty seat among the dozen or so provided, into an adjacent room where they can watch the proceedings on video. However, they are invisible to the Panel. This arrangement marginalizes the effect of a significant public presence at hearings. It insulates the panel from the inhibiting effect of seeing themselves being observed. But this physical separation of the Tribunal’s new home has been accompanied at the same time by a closer integration of the Tribunal itself into the Law Society’s bureaucratic apparatus and tighter control over the autonomy of panel members and their assignment to cases.

 

Fixed Term or “at Pleasure”?

Most astonishing of all the changes are the circumstances surrounding the appointment of a full-time Tribunal Chair, David A. Wright, who is also an adjudicator for the Tribunal. Wright’s employment agreement cites a four-year fixed term, but the Law Society Act provides that he “holds office at the pleasure of Convocation.” This means no security of tenure, essential to judicial independence: he can be fired any time without reason. So which is it, fixed term or “at pleasure”?

It is hard to believe that the mavens in the Law Society legal department made such an error by mistake. These contradictory provisions create an ambiguity designed to undermine the independence of the Chair while providing a measure of deniability. (Ah! – What would we ever do without the schemes that lawyers weave?)

Consider the following. Wright must report to Convocation, which is made up of Benchers (governors) of the legal profession, on the “quality and performance” of his fellow adjudicators. He is accountable to Convocation for “implementing its policies, directives and guidelines”. David A. Wright assigns panels to hear cases without any restraint, a judicial administrative function that Benchers should have no say over. As a result, the Law Society effectively holds a gun at his head on matters that they incorrectly describe as “administrative” tasks. Imagine how another adjudicator sitting on a panel with Wright would feel about making a dissent against a majority opinion written by Wright himself while wearing his hat as an adjudicator. Not a very salutary arrangement for infusing the Tribunal with a sense of security and control of its own processes free of executive interference. Through Wright, the Tribunal is now controlled by a puppet connected by dozens of strings tied to the fingers of Big Law. He is a spy in the midst of the Tribunal through whose eyes and ears the wizards learn, know and decide everything behind the curtain.

 

Law Society a Virus in the Tribunal’s Hard Drive

It was this lack of independence and control by the Tribunal’s adjudicators over their own quasi-judicial process that was the focus of the second ground of Harry Kopyto’s argument on his appeal. Harry characterized the managing autocrats of the Law Society as a virus in the hard drive of the Tribunal with countless connections channeling into the Tribunal’s inner processes. He described the tight noose that Convocation holds over the Chair and, through the Chair, over the adjudicators as a façade masking a concealed dictatorship. He accused the existing arrangement as being inconsistent with the public purpose and constitutional principles and values reflected in the Law Society Act that speaks of advancing the rule of law. He countered the Law Society prosecutor’s stale argument that the scheduling of panelists was only an operational matter. He explained how critical it is for a judiciary to control its own power to assign who sits on the various cases—think of judges—shopping in reverse. He pointed out that adjudicators should not have to glance over their shoulder in fear that the Chair will report them to the conclave of legal cardinals.

He argued that the Code of Conduct that governs adjudicators speaks of justice as well as law. He asked how it was that the Law Society could create the anomaly of guaranteeing a Chair a fixed term and then also reserve the power to terminate him or her without cause or notice. He asked: How can the Law Society’s legal department, expertly versed in drafting complex legislation, make such an egregious error? Or maybe, he said, it is not an error. Then what purpose does it serve? Is it to make the Chair cower? He laid it out as he saw it—a mockery of the independence of the adjudicators.

 

One Size Doesn’t Fit All

Harry appealed to the adjudicators to reject a Tribunal decision made last year in which another appeal panel held that the Law Society could appoint the Chair “at pleasure” because such an appointment was allowed in a liquor licensing case where a liquor license suspension for two days was at issue. Harry argued that a higher standard of independence providing security of tenure had to be applied to the position of Tribunal Chair. After all, the Law Society has a stranglehold over who can be a representative in judicial institutions, which are a major foundation of a democratic society. Lawyers are officers of the Court, not bartenders. “One size doesn’t fit all,” he proclaimed.

Even if it is statutorily permissible, Harry argued, you are not required to passively accept being part of the pretense. “I am asking you to express your discomfort with the perversion of the Tribunal’s processes that make a mockery of your own independence.” He emphasized that the control Convocation holds over the Chair is so broad “that you can fly a convoy of jumbo jets through it”. And he concluded by asking the panelists to recuse themselves from the panel as a protest against the statutory framework which creates a gross appearance of institutional bias.

 

No Cringing

There was an unusual dynamic in Hearing Room “-A-” during Harry’s presentation. There was no cringing. There was no genuflection. There were few sweet words exchanged. No kisses were blown in the wind. There was no stilted over-politeness. Harry’s unremitting attack on the mirage of the Tribunal’s independence was reinforced throughout by powerfully worded citations of case law that hammered each of his points home in accordance with the most stringent standards of jurisprudence.

The Law Society’s prosecuting lawyers—the tag team of Heakes and Dionne—were remarkably insipid in their response. Instead of an appeal where the appellant typically tries to defend himself and asks for mercy for his errant deeds, Harry reversed the optics. He made the erosion of the independence of the Tribunal his target. He hit the bull’s eye. His unrelenting deconstruction of the carefully laid snags and hooks in the legislation governing the Tribunal’s procedures was expressed in plain words, avoiding legalese. It was obvious that Harry’s argument scorched the delicate fabric of the Tribunal’s masquerade.

At the end of the hearing, Linda Rothstein, the Chair, turned to Law Society senior prosecutor, Susan Heakes. She asked her, in a voice that betrayed concern, if she agreed that the Law Society couldn’t simply appoint a Tribunal Chair at pleasure but had to have regard to Harry’s points. Linda Rothstein was expecting an answer that would refute Harry, but one thing is for sure—she didn’t get it. Heakes conceded that Harry’s method of analysis was correct.

The fact that Rothstein had to ask that question shows the degree to which the Law Society’s self-serving rationales for maintaining a Mickey Mouse Tribunal were devastated by Harry. Rothstein will have to do some deep thinking if she doesn’t want her decision overturned by an appeal court. Linda Rothstein’s final word, expressed with a sigh, was that the issue was “complex”. That’s a code word. It means the panel was stymied. It means the panel will not find it easy to confuse or deflect Harry’s charges in its written decision to be delivered later.

Will they persist in trying to do so? Or will they do the right thing?

Don’t hold your breath.

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