Divisional Court Blind to Law Society’s Bias

The ice that had formed on the austere gray masonry of Osgoode Hall’s exterior walls in downtown Toronto on December 2, 2016 never got as cold as the reception Harry Kopyto received from the three judges ensconced on their elevated perch as they peered down in studied silence at Harry Kopyto as he argued his judicial review of the Law Society’s Appeal Panel. Recall that the Law Society Appeal Panel confirmed the decision of the Law Society Hearing Panel, led by Margot Blight, that had refused to allow Harry the right to work as a legal advocate after 41 years of doing so because of his alleged poor character.  Why, you ask, such frosty treatment from these supposed judicial guardians of procedural fairness?

To those who are vague about why most high court judges are not enamored of Harry, it is hard to know where to begin to unwind the skein. Could it be that one of Harry’s grounds for judicial review before the Divisional Court, charged with rectifying procedural irregularities, was Harry’s revelation of how the Law Society’s bureaucrats have a thousand channels into the Office of the Chair of the Law Society’s disciplinary tribunal?  Or, that Harry Kopyto has spent his career as a legal advocate—for over four decades—exposing the raw nerves of Canada’s class-based judicial institutions?  Or that the Divisional Court is widely regarded within the legal profession as a bastion of conservatism and a shameless defender of the most outrageous decisions of administrative tribunals?

The decision of the Divisional Court was enunciated by Judge Nordheimer who blithely avoided addressing the admitted financial conflict of Harry’s Law Society Hearing Panel Chair, the relentless Blight, whose firm was contemporaneously acting in a court proceeding against one of Harry’s key witnesses.  Nor did Nordheimer directly deal with her recent role as the lawyer personally litigating against that witness.  Instead, the three judges proclaimed that the Chair’s decision not to resign because of the indisputable appearance of bias and conflict “falls within the range of possible outcomes which are defensible in respect of the facts and law.”  How’s that for legal gobbledygook—big words with little substance sidestepping the raw evidence of Harry’s unfair treatment?

On the other hand, the Nordheimer Panel was not shy at all about defending the lack of institutional independence of their kissing cousins in the Law Society which occupies offices across the hallway in the east wing of Osgoode Hall. The judges determined that the Chair of the Law Society Tribunal enjoyed “the requisite degree of independence in accordance with the principles of natural justice.”  Fine sounding words—perhaps an early Christmas present to their neighbours across the hall?  But a mere specious shibboleth as the court evaded addressing the propriety of requiring the Law Society’s Tribunal Chair to seek the approval of the Law Society administrative inner sanctum on many adjudicative matters. And yes, these judges ignored the fact that the Law Society can fire the Chair without cause or reason if he/she displeases it, a brazen breach of the principal that security of tenure is a hallmark of judicial independence.

So where is Harry going from here?  Glad you asked.  He is standing his ground.  An Application for Leave to Appeal the decision of the Divisional Court has already been filed. Will the Court of Appeal want to hear the case?  We’ll need to keep in touch on that one.

One more critical point.  Harry’s supporters have been unwavering in their support. Twenty-five of them chose to pack the courtroom.  One of them even dared to address the court openly after its decision.  The solidarity of Harry’s supporters, over many years in some cases, has been Harry’s mainstay. The fact that his supporters continue to attend the hearings and defend Harry after all these years is heartening. More importantly, it lets Big Law know that their conceits are transparent and the public is continuing to watch.

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