The Competition Bureau has published the letter it sent to the Paralegal Standing Committee (Ontario) regarding paralegal regulation by the Law Society of Upper Canada. http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02277.html
The January 25, 2005 letter was addressed to Mr. Paul Dray, Chair, Paralegal Committee, The Law Society of Upper Canada and copied to Mr. Gavin MacKenzie, The Law Society of Upper Canada, Treasurer and the Honourable Michael Bryan, Attorney General. It was modified on November 2nd, 2011.
At page 3:
"When one group of professionals is reliant upon another group of competing professionals for the ability to practice its profession and he scope of authorized activities, the Bureau is concerned that unfounded quality of service arguments may be used to artificially restrict access to the market in which the professionals compete."
"The Bureau encourages vigilance that any such standards and limitations, conditions and restrictions on scope of practice be supported by fact and not speculation and that they not become a barrier that will unnecessarily restraint the ability of paralegals to independently enter the market."
Having been heavily involved with the paralegal movement just prior to the introduction of Bill 14--Access to Justice Act, 2006 including having prepared a written and appeared before the Standing Committee on Justice Policy when the Bill was before the Legislature, I am of opinion that neither Mr. Gavin MacKenzie nor the Honourable Michael Bryant were addressing the concerns of paralegals with an open mind. I will elaborated on my concerns in another blog but it suffice for now to ask whether the conclusions of the Competition Bureau were properly addressed. They are:
"In closing, our goal at the Bureau is to ensure that all markets deliver the benefits of competition, including low costs, high quality, and a variety of choice to Canadian consumers and businesses."
I am of opinion that the door was shut to such people who had demonstrated over time that they could provide low costs and a high quality of service to people who could not afford the most expensive model.
And second: "If the Bureau can be of any assistance to the Committee in the development of the rules and regulations as they apply to paralegal regulation, I invite the Committee to contact Zia Proulx at (819) 994-4830"
Mr. Harry Kopyto appearing before a number of panels, three to be exact including the Blight panel who are questioning his good character base on what I have reasons to believe and verily believe that such panels were constituted on a biased of the Law Society leading investigator sought answer as to whether the Law Society had addressed the Competition Bureau to no avails. I have further rasons to believe and varily believe that it did not because if it did it would have addressed the fact that some of paralegals overtime had demonstrated that the could provided low costs and high quality service in areas that were restricted and that it was the intent of the Law Society to close the door on those excellent paralegals.
Sunday, January 8, 2012
Sunday, January 1, 2012
WHAT ABOUT THE KOPYTO DISBARMENT APPEAL?
In a proceedings before the Divisional Court , the case was heard on September 12, 1986 and the oral reasons of Saunders J. were released on September 22, 1986, (Saunders, O’Brien, and Fitzpatrick JJ.) 18 A.O.A.C. 49 Harry Kopyto was one of the counsels representing McKeown in McKeown v. Law Society of Upper Canada - Docket 895/86.
At p. 49 the matter is summarized as follows: “The discipline committee of the Law Society of Upper Canada requested a lawyer to respond to certain allegation of misconduct. The committee also ordered that person participating in the lawyer’s disciplinary hearing be searched, including counsel for the lawyer. The lawyer applied to quash both decision of the committee.”
In the head notes at page 49—“The Divisional Court held that the discipline committee of the Law Society of Upper Canada had the power to take reasonable precaution to provided security, including a search of the participants, including counsel, at a disciplinary hearing – The court held that such a search would not be a denial of the rules of natural justice or unreasonable under s, 8 of the Charter of Rights. – Reference is made to paragraph 4 to 6.”
Could a person of sane mind conclude that such a search of counsel that the Law Society of Canada exercised their power judicially? Was it a reasonable precaution to provide for the committee security or was it an exercise of power aimed to discredit Kopyto by assuming that he would be carrying on his person any that would threaten the security of the committee. Was the committee exercising it power for the sole purpose of degrading Kopyto who by this time the Society and some of its members had already began showing animosity toward him.
The second head notes which read in parts: “The court held that the committee has a right to control its own process and would not be interfered with by the court unless it denied natural justice or acted contrary to statute including the Charter – Reference is made to paragraphs 1, 2 and 4.”
The only paragraph that seems to have some baring regarding the above quoted portion is paragraph 4 which I will quote below in length because it seems to miss one element that to me is important:
“The discipline committee has a right to control its process and it will not be interfered with by this court unless it denies natural justice or act contrary to a statute including the Charter. If the discipline committee on reasonable grounds apprehends that there is a danger to the persons participating in a hearing then in our view it is entitled to take reasonable precautions to provide security. Such a precaution could include a search of the participants. In this, there was abundant evidence before the committees to justify a sercch of participants and such a search would not have infringed the rights guaranteed by s. 8 of the Charter. It is unfortunate that such precautions need to be taken. If they are perceived by the applicant to create a prejudicial atmosphere they nevertheless must be carried out in the interest of security with outweighs the possible prejudice, In our view, the carrying out of reasonable security precautions in the case were not, and could not be a denial of natural justice. A general search of participants is not a reflection on anyone. It is well known that articles can be clandestinely or surreptitiously place on persons or in belonging.” p. 50
What was the abundance evidence before the committee before the committee to justify the search of Mr. Kopyto to which Mr. Justice Saunders alluded to above? He silent on any evidence that was supposed to be before the committee evidence that would have justify such a search.
Paragraph 9 of Mr. Saunders reasons is most disturbing especially the last sentence: “The Law Society is entitled to expect that in members act in a reasonable, responsible and mature fashion.” Could it be alluded that Mr. Justice Saunders in using the word “entitlement” erred it is rather “a duty” a duty that the Law Society to act in the public best interest. A duty that they far too often failed to exercise when complaint are raised before the Society. This will be demonstrated in later Blogs.
Following the Law Society’s good character panel hearing Chaired by Ms. Blights kind of prompt me to reactivate my Blog Access to Justice in my first posting since 2009 entitled ACCESS TO JUSTICE BLOG REACTIVATED
http://accesstojustice70.blogspot.com/2011/12/access-to-justice-blog-reactivated.html
In that Blog, I made reference to Kopyto’s success before Supreme Court of Canada in unanimous ruling of that court in Dowson v. The Queen http://canlii.ca/t/1txhw delivered by Lamer J. (as he was then), Laskin C.J., and Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson JJ. Concurring) in overruling the Ontario Court—Court of appeal ruling delivered by Howland, C.J.O. Martin and Laciyrcière concurring, 62 C.C.C. (2d) 286—Ontario High Court of Justice ruling of Montgomery J. 57 C.C.C. (2d) 140.
What is noticeable when the matter was before the Ontario Court of Appeal and later before the Supreme Court of Canada, Ian Scott, Q.C. was one of the counsels representing Intervener, Canadian Civil Liberties Association and by the time that the Law Society of Upper Canada disbarred Kopyto, the Honourable Scott was now Attorney General of Ontario under the Liberal Administration of the time. Kopyto asked the Attorney General to charge him with the alleged fraud upon which the Law Society has founded two of the three member of the panel calling for his disbarment. The Attorney General refused knowing full well that if the Crown could not have proved its case against Kopyto, in his role as guardian of public interest pursuant to section 13(1) of the Law Society Act, R.S.O. 1990, c. L.8, as amended, he would have had to force the Law Society to reinstate Kopyto licence.
Sect13(1) now reads: “The Attorney General for Ontario shall serve as the guardian of the public interest in all matters within the scope of this Act or having to do in any way with the practice of law in Ontario or the provision of legal services in Ontario, and for this purpose he or she may at any time require the production of any document or thing pertaining to the affairs of the Society. R.S.O. 1990, c. L.8, s. 13 (1); 1998, c. 21, s. 7 (1); 2006, c. 21, Sched. C, s. 13.”
Before proceeding further it is important to note what the Dawson case referred above was all about. Dawson had laid information before Justice of the Peace on April 25, 1980 had laid an information before a Justice of the Peace allegedly forged letter. Then on June 26, 1980, a new information was laid it charged an officer of the R.C.M.P. with forgery, uttering false documents and conveying false message contrary to ss. 326(1), 330 and 324 of the Criminal Code.
On October 30, counsel for the Attorney General of Ontario, pursuant to s. 508 of the Code, directed the clerk of the court to make an entry on the record that the proceeding were stayed by the direction of the Attorney General. His Worship Justice of the Peace Allen refused the appellant’s application for an adjournment and discontinued the proceeding.
The rest is history, the Supreme Court of Canada allowed the appeal and the head note reads: “Section 508 of the Criminal Code did not empower the Attorney General to stay the proceedings at any time after an information was laid. The power to stay starts only after a summons or warrant is issued. The laying of an information doe not amount to the ‘finding of an information”; an information is found only after the Justice of the Piece has made a decision to issue process. The Power to stay, while necessary, encroaches upon a citizen’s fundamental and historical right to inform under oath a Justice of the Peace of the commission of a crime. Parliament has seen fit to impose upon the justice an obligation to ‘hear and consider’ the allegation and made a determination. In the absence of a clear and unambiguous text taking away that right, and considering a text of law that is open to an interpretation that favours the exercise of that right while amply accommodating the policy consideration that that supports the power to stay, the right should be protected.” [1983] 2 .S.C.R 144 at 144-5
Kopyto brought to my attention what happened after the release of the Supreme Court of Canada and on Friday, the 30 of December, I went to Osgoode Hall to research the information that Kopyto had provided me to find out that the Great Law Library at Osgoode Hall which as I understand is operated by the Law Society of Upper Canada was closed. The Osgoode Hall’ Registrar’s Office of the Ontario Court of Appeal was open until 5 p.m. on that day as I was informed by a clerk. When the security informed me that the library was closed it is not that I disbelieved them but I asked them to allow me to go and check it out for myself around 11 a.m. that day to confirm that a self-represented litigant would have need the service of the library to deal with the Court would have been denied that service even though the Court was open for service.
This will be the subject of another Blog. Because it important to demonstrated to what extend the governments are willing to protect appears want to protect Police officers who face allegation based on information that was laid it charging an officer of the R.C.M.P. with forgery, uttering false documents and conveying false message contrary to ss. 326(1), 330 and 324 of the Criminal Code. Sections quoted by the Supreme Court of Canada in the Dawson case referred above.
What is intriguing for the members of the audience who attends these hearing on a regular basis is the ability of the Law Society’s lead investigator, Adrian Greenaway’s ability to speak from both side of his mouth as a speaks of respect of the law. Was what Kopyto character was all about when he went all the way to the Supreme Court of Canada to protect Canadian citizens from Police albeit an R.C.M.P. against the conduct of an Attorney General who sought to shove those of misconduct allegations under the rug. If such efforts are not evidence of Kopyto’s good character whose knows what more could be asked of a former lawyer who has practice as a paralegal for some 22 years since his disbarment to continue to protect Canadian citizens from administrative systemic abuses.
No wonder the Blight panel wants Greenaway out of the witness box as soon as possible, Kopyto could mot have summon a better witness to make his case and yet it was handed to him by his prosecutors on a silver platter. There are only so many damage conrols that her panel can do. The half ass investigation that he conducted in recommending the good character hearing could bring into question the legitimacy of the good character hearing and the Blight panel’s proceedings. What is most disturbing could to the roots of the legitimacy of the Law Society of Upper Canada as a whole if only as I understand only 37 per cent of its membership participated in the election of the Benchers. Could it be fair to assume that the Law Society has lost its usefulness and that the Society that has long lost its raison d’être? Could it also be that it has betrayed its legislative mandate to protector of public interest and became the defender of the establishment in flagrant contravention of legislative intents.
Before it return to the in McKeown v. Law Society of Upper Canada case referred at the beginning of this Blog for reasons that will become apparent as we proceed, it is important to refer to another case.
In December 1989, Kopyto brought a motion before the Divisional Court in which he sought to stay of his disbarment pending determination of his appeal from that disbarment the before Austin J, High Court of Justice, Divisional Court Kopyto v. Law Society of Upper Canada, 71 O.R.. (2d) 510. That motion was dismissed December 22, 1989.
When his appeal against his debarment first came for hearing before O’Drisdoll, O’Brien and H.J. Smith JJ in the Divisional Court, at the opening of an appeal counsel for Kopyto challenged the right of one of the judge to hear the appeal. The challenge related to a previous case the judge had hare as one of a panel of three judges. The previous case led to a ruling upholding the right of the law Society of Upper Canada discipline committee to require that persons entering the room be searched as a security measure. Kopyto was counsel for McKeown at that discipline hearing objected and refused to be searched. When giving reasons the court stated that the application might have raised a technical point but it had no substantive merit and the Law Society was entitled to expect members act in a reasonable, responsible and mature fashion. It was submitted that such statements raised a reasonable apprehension of bias.—The application was dismissed. 107 D.L.R. (4th) 259
At 259, O’Brien J. (orally): “On the basis of the present ruling, it would appear that while I may be entitled to remain on the panel, out of an abundance of caution, I will withdraw from the hearing and I am informed that the panel will be reconstituted.”
I would have to search my files which are in storage to find out if O’Brien J. is the same judge who sat as a single Judge in a judicial review who ordered me to sit down because I had no rights. The right to bring my application for judicial review was clearly laid out in the act upon which I sought the review.
The matter return before the Divisional Court on October 28 and November 29 before Callaghan, C.J.O.C., O’Driscoll and H,J. Smith JJ, 107 D.L.R. (4th) 259 at 266 Kopyto’s following statement is quoted in the reasons for judgment: “Mr. Kopyto did take issue, however with the Committee’s recommendation as to penalty. He led his case before Convocation on the footing that the Agreed Statement of Fact did not establish dishonest conduct but on carelessness, impression and negligence in failing to identify accurately the date and time at which the legal services were performed. In sort, the trust of Mr. Kopyto’s position was that Legal Aid was not overbilled because the legal services described were performed although not as described in the account.”
Leave to the Ontario Court of Appeal was refused March 13m 1995 and leave to appeal to the Supreme Court of Canada refused with costs September 28, 1995. (Ka Forest, Cory and Major JJ.
Now we must not lose sight that there is a policy of the Supreme Court of Canada not to interfere with exercise of discretion of an appellate court refusing leave.
There is reference during the course of these proceedings of civil fraud yet when Kopyto asked the Attorney General of Ontario the Hon. Ian Scott to charge him so as to give him the opportunity to clear his name the Attorney General refuse.
I have also appeared before a number of Justices named Smith at least on three occasions if any of them are the same J.H. Smith and I could prove that in my case there were some miscarriage of Justice, it could also go to strengthen the fact that there was a miscarriage of justice in Kopyto’s case. My dealings with judgment in which some Justices named Smiths took part in some of my application for judicial review will be the topic of future blogs.
Per Law Society’s case of ‘Kopyto as fraudster’ falters – now he’s ungovernable
November 18, 2011 Greenaway’s Credibility Shattered http://harrykopyto.ca/2011/11/18/law-societys-case-of-kopyto-as-fraudster-falters :
First, Harry savagely destroyed the carefully crafted myth that he defrauded the Ontario Legal Aid Plan. (See box below detailing the chronology of Kopyto’s dealings with the Legal Aid Plan.) http://harrykopyto.ca/2011/11/18/law-societys-case-of-kopyto-as-fraudster-falters “Greenaway admitted under fire that his two-year- long-scouting expedition in the archival bowels of Osgoode Hall confirmed that the Legal Aid Plan paid Kopyto for all the legal aid accounts that it froze when the LSUC disbarred him in 1989. Somewhat dazed, he conceded that not a cent was deducted for any alleged ‘overbilling.’ Yet this mythical ‘overbilling’ was the reason the majority of Convocation― lawyers elected by lawyers to run the LSUC gave to justify Kopyto’s disbarment.”
Could it be that the only reasons Callaghan, C.J.O.C., O’Driscoll and H,J. Smith JJ, 107 D.L.R. (4th) 259 were not brought to their senses as were the Ontario Judges who were overruled by the Supreme Court of Canada was the mere fact the Supreme Court of Canada’s policy not to interfere with the appellate court exercise of discretion when refusing leave to appeal without reasons or justifications. The Bright panel is not only an opportunity for Kopyto to clear his name but to validate the principles by which he stands for. The Supreme Court had no problem overruling two decisions of the Ontario Court when the Ontario Court of Appeal exercised its discretion to hear the appeal from a lower court. Could the Supreme Court of Canada have overruled the Divisional Court decision to uphold the Law Society 1989 disbarment if it weren’t for its Policy not to interfere with appellate court exercise of discretion?
At p. 49 the matter is summarized as follows: “The discipline committee of the Law Society of Upper Canada requested a lawyer to respond to certain allegation of misconduct. The committee also ordered that person participating in the lawyer’s disciplinary hearing be searched, including counsel for the lawyer. The lawyer applied to quash both decision of the committee.”
In the head notes at page 49—“The Divisional Court held that the discipline committee of the Law Society of Upper Canada had the power to take reasonable precaution to provided security, including a search of the participants, including counsel, at a disciplinary hearing – The court held that such a search would not be a denial of the rules of natural justice or unreasonable under s, 8 of the Charter of Rights. – Reference is made to paragraph 4 to 6.”
Could a person of sane mind conclude that such a search of counsel that the Law Society of Canada exercised their power judicially? Was it a reasonable precaution to provide for the committee security or was it an exercise of power aimed to discredit Kopyto by assuming that he would be carrying on his person any that would threaten the security of the committee. Was the committee exercising it power for the sole purpose of degrading Kopyto who by this time the Society and some of its members had already began showing animosity toward him.
The second head notes which read in parts: “The court held that the committee has a right to control its own process and would not be interfered with by the court unless it denied natural justice or acted contrary to statute including the Charter – Reference is made to paragraphs 1, 2 and 4.”
The only paragraph that seems to have some baring regarding the above quoted portion is paragraph 4 which I will quote below in length because it seems to miss one element that to me is important:
“The discipline committee has a right to control its process and it will not be interfered with by this court unless it denies natural justice or act contrary to a statute including the Charter. If the discipline committee on reasonable grounds apprehends that there is a danger to the persons participating in a hearing then in our view it is entitled to take reasonable precautions to provide security. Such a precaution could include a search of the participants. In this, there was abundant evidence before the committees to justify a sercch of participants and such a search would not have infringed the rights guaranteed by s. 8 of the Charter. It is unfortunate that such precautions need to be taken. If they are perceived by the applicant to create a prejudicial atmosphere they nevertheless must be carried out in the interest of security with outweighs the possible prejudice, In our view, the carrying out of reasonable security precautions in the case were not, and could not be a denial of natural justice. A general search of participants is not a reflection on anyone. It is well known that articles can be clandestinely or surreptitiously place on persons or in belonging.” p. 50
What was the abundance evidence before the committee before the committee to justify the search of Mr. Kopyto to which Mr. Justice Saunders alluded to above? He silent on any evidence that was supposed to be before the committee evidence that would have justify such a search.
Paragraph 9 of Mr. Saunders reasons is most disturbing especially the last sentence: “The Law Society is entitled to expect that in members act in a reasonable, responsible and mature fashion.” Could it be alluded that Mr. Justice Saunders in using the word “entitlement” erred it is rather “a duty” a duty that the Law Society to act in the public best interest. A duty that they far too often failed to exercise when complaint are raised before the Society. This will be demonstrated in later Blogs.
Following the Law Society’s good character panel hearing Chaired by Ms. Blights kind of prompt me to reactivate my Blog Access to Justice in my first posting since 2009 entitled ACCESS TO JUSTICE BLOG REACTIVATED
http://accesstojustice70.blogspot.com/2011/12/access-to-justice-blog-reactivated.html
In that Blog, I made reference to Kopyto’s success before Supreme Court of Canada in unanimous ruling of that court in Dowson v. The Queen http://canlii.ca/t/1txhw delivered by Lamer J. (as he was then), Laskin C.J., and Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson JJ. Concurring) in overruling the Ontario Court—Court of appeal ruling delivered by Howland, C.J.O. Martin and Laciyrcière concurring, 62 C.C.C. (2d) 286—Ontario High Court of Justice ruling of Montgomery J. 57 C.C.C. (2d) 140.
What is noticeable when the matter was before the Ontario Court of Appeal and later before the Supreme Court of Canada, Ian Scott, Q.C. was one of the counsels representing Intervener, Canadian Civil Liberties Association and by the time that the Law Society of Upper Canada disbarred Kopyto, the Honourable Scott was now Attorney General of Ontario under the Liberal Administration of the time. Kopyto asked the Attorney General to charge him with the alleged fraud upon which the Law Society has founded two of the three member of the panel calling for his disbarment. The Attorney General refused knowing full well that if the Crown could not have proved its case against Kopyto, in his role as guardian of public interest pursuant to section 13(1) of the Law Society Act, R.S.O. 1990, c. L.8, as amended, he would have had to force the Law Society to reinstate Kopyto licence.
Sect13(1) now reads: “The Attorney General for Ontario shall serve as the guardian of the public interest in all matters within the scope of this Act or having to do in any way with the practice of law in Ontario or the provision of legal services in Ontario, and for this purpose he or she may at any time require the production of any document or thing pertaining to the affairs of the Society. R.S.O. 1990, c. L.8, s. 13 (1); 1998, c. 21, s. 7 (1); 2006, c. 21, Sched. C, s. 13.”
Before proceeding further it is important to note what the Dawson case referred above was all about. Dawson had laid information before Justice of the Peace on April 25, 1980 had laid an information before a Justice of the Peace allegedly forged letter. Then on June 26, 1980, a new information was laid it charged an officer of the R.C.M.P. with forgery, uttering false documents and conveying false message contrary to ss. 326(1), 330 and 324 of the Criminal Code.
On October 30, counsel for the Attorney General of Ontario, pursuant to s. 508 of the Code, directed the clerk of the court to make an entry on the record that the proceeding were stayed by the direction of the Attorney General. His Worship Justice of the Peace Allen refused the appellant’s application for an adjournment and discontinued the proceeding.
The rest is history, the Supreme Court of Canada allowed the appeal and the head note reads: “Section 508 of the Criminal Code did not empower the Attorney General to stay the proceedings at any time after an information was laid. The power to stay starts only after a summons or warrant is issued. The laying of an information doe not amount to the ‘finding of an information”; an information is found only after the Justice of the Piece has made a decision to issue process. The Power to stay, while necessary, encroaches upon a citizen’s fundamental and historical right to inform under oath a Justice of the Peace of the commission of a crime. Parliament has seen fit to impose upon the justice an obligation to ‘hear and consider’ the allegation and made a determination. In the absence of a clear and unambiguous text taking away that right, and considering a text of law that is open to an interpretation that favours the exercise of that right while amply accommodating the policy consideration that that supports the power to stay, the right should be protected.” [1983] 2 .S.C.R 144 at 144-5
Kopyto brought to my attention what happened after the release of the Supreme Court of Canada and on Friday, the 30 of December, I went to Osgoode Hall to research the information that Kopyto had provided me to find out that the Great Law Library at Osgoode Hall which as I understand is operated by the Law Society of Upper Canada was closed. The Osgoode Hall’ Registrar’s Office of the Ontario Court of Appeal was open until 5 p.m. on that day as I was informed by a clerk. When the security informed me that the library was closed it is not that I disbelieved them but I asked them to allow me to go and check it out for myself around 11 a.m. that day to confirm that a self-represented litigant would have need the service of the library to deal with the Court would have been denied that service even though the Court was open for service.
This will be the subject of another Blog. Because it important to demonstrated to what extend the governments are willing to protect appears want to protect Police officers who face allegation based on information that was laid it charging an officer of the R.C.M.P. with forgery, uttering false documents and conveying false message contrary to ss. 326(1), 330 and 324 of the Criminal Code. Sections quoted by the Supreme Court of Canada in the Dawson case referred above.
What is intriguing for the members of the audience who attends these hearing on a regular basis is the ability of the Law Society’s lead investigator, Adrian Greenaway’s ability to speak from both side of his mouth as a speaks of respect of the law. Was what Kopyto character was all about when he went all the way to the Supreme Court of Canada to protect Canadian citizens from Police albeit an R.C.M.P. against the conduct of an Attorney General who sought to shove those of misconduct allegations under the rug. If such efforts are not evidence of Kopyto’s good character whose knows what more could be asked of a former lawyer who has practice as a paralegal for some 22 years since his disbarment to continue to protect Canadian citizens from administrative systemic abuses.
No wonder the Blight panel wants Greenaway out of the witness box as soon as possible, Kopyto could mot have summon a better witness to make his case and yet it was handed to him by his prosecutors on a silver platter. There are only so many damage conrols that her panel can do. The half ass investigation that he conducted in recommending the good character hearing could bring into question the legitimacy of the good character hearing and the Blight panel’s proceedings. What is most disturbing could to the roots of the legitimacy of the Law Society of Upper Canada as a whole if only as I understand only 37 per cent of its membership participated in the election of the Benchers. Could it be fair to assume that the Law Society has lost its usefulness and that the Society that has long lost its raison d’être? Could it also be that it has betrayed its legislative mandate to protector of public interest and became the defender of the establishment in flagrant contravention of legislative intents.
Before it return to the in McKeown v. Law Society of Upper Canada case referred at the beginning of this Blog for reasons that will become apparent as we proceed, it is important to refer to another case.
In December 1989, Kopyto brought a motion before the Divisional Court in which he sought to stay of his disbarment pending determination of his appeal from that disbarment the before Austin J, High Court of Justice, Divisional Court Kopyto v. Law Society of Upper Canada, 71 O.R.. (2d) 510. That motion was dismissed December 22, 1989.
When his appeal against his debarment first came for hearing before O’Drisdoll, O’Brien and H.J. Smith JJ in the Divisional Court, at the opening of an appeal counsel for Kopyto challenged the right of one of the judge to hear the appeal. The challenge related to a previous case the judge had hare as one of a panel of three judges. The previous case led to a ruling upholding the right of the law Society of Upper Canada discipline committee to require that persons entering the room be searched as a security measure. Kopyto was counsel for McKeown at that discipline hearing objected and refused to be searched. When giving reasons the court stated that the application might have raised a technical point but it had no substantive merit and the Law Society was entitled to expect members act in a reasonable, responsible and mature fashion. It was submitted that such statements raised a reasonable apprehension of bias.—The application was dismissed. 107 D.L.R. (4th) 259
At 259, O’Brien J. (orally): “On the basis of the present ruling, it would appear that while I may be entitled to remain on the panel, out of an abundance of caution, I will withdraw from the hearing and I am informed that the panel will be reconstituted.”
I would have to search my files which are in storage to find out if O’Brien J. is the same judge who sat as a single Judge in a judicial review who ordered me to sit down because I had no rights. The right to bring my application for judicial review was clearly laid out in the act upon which I sought the review.
The matter return before the Divisional Court on October 28 and November 29 before Callaghan, C.J.O.C., O’Driscoll and H,J. Smith JJ, 107 D.L.R. (4th) 259 at 266 Kopyto’s following statement is quoted in the reasons for judgment: “Mr. Kopyto did take issue, however with the Committee’s recommendation as to penalty. He led his case before Convocation on the footing that the Agreed Statement of Fact did not establish dishonest conduct but on carelessness, impression and negligence in failing to identify accurately the date and time at which the legal services were performed. In sort, the trust of Mr. Kopyto’s position was that Legal Aid was not overbilled because the legal services described were performed although not as described in the account.”
Leave to the Ontario Court of Appeal was refused March 13m 1995 and leave to appeal to the Supreme Court of Canada refused with costs September 28, 1995. (Ka Forest, Cory and Major JJ.
Now we must not lose sight that there is a policy of the Supreme Court of Canada not to interfere with exercise of discretion of an appellate court refusing leave.
There is reference during the course of these proceedings of civil fraud yet when Kopyto asked the Attorney General of Ontario the Hon. Ian Scott to charge him so as to give him the opportunity to clear his name the Attorney General refuse.
I have also appeared before a number of Justices named Smith at least on three occasions if any of them are the same J.H. Smith and I could prove that in my case there were some miscarriage of Justice, it could also go to strengthen the fact that there was a miscarriage of justice in Kopyto’s case. My dealings with judgment in which some Justices named Smiths took part in some of my application for judicial review will be the topic of future blogs.
Per Law Society’s case of ‘Kopyto as fraudster’ falters – now he’s ungovernable
November 18, 2011 Greenaway’s Credibility Shattered http://harrykopyto.ca/2011/11/18/law-societys-case-of-kopyto-as-fraudster-falters :
First, Harry savagely destroyed the carefully crafted myth that he defrauded the Ontario Legal Aid Plan. (See box below detailing the chronology of Kopyto’s dealings with the Legal Aid Plan.) http://harrykopyto.ca/2011/11/18/law-societys-case-of-kopyto-as-fraudster-falters “Greenaway admitted under fire that his two-year- long-scouting expedition in the archival bowels of Osgoode Hall confirmed that the Legal Aid Plan paid Kopyto for all the legal aid accounts that it froze when the LSUC disbarred him in 1989. Somewhat dazed, he conceded that not a cent was deducted for any alleged ‘overbilling.’ Yet this mythical ‘overbilling’ was the reason the majority of Convocation― lawyers elected by lawyers to run the LSUC gave to justify Kopyto’s disbarment.”
Could it be that the only reasons Callaghan, C.J.O.C., O’Driscoll and H,J. Smith JJ, 107 D.L.R. (4th) 259 were not brought to their senses as were the Ontario Judges who were overruled by the Supreme Court of Canada was the mere fact the Supreme Court of Canada’s policy not to interfere with the appellate court exercise of discretion when refusing leave to appeal without reasons or justifications. The Bright panel is not only an opportunity for Kopyto to clear his name but to validate the principles by which he stands for. The Supreme Court had no problem overruling two decisions of the Ontario Court when the Ontario Court of Appeal exercised its discretion to hear the appeal from a lower court. Could the Supreme Court of Canada have overruled the Divisional Court decision to uphold the Law Society 1989 disbarment if it weren’t for its Policy not to interfere with appellate court exercise of discretion?
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