The Law Society of Upper Canada v. Igbinosun,

• Jurisdiction: Ontario
• Judge: Weiler, Gillese and Watt, JJ.A.
• Neutral Citation: 2009 ONCA 484
• Citation: (2009), 265 O.A.C. 27 (CA),2009 ONCA 484,96 OR (3d) 138,93 Admin LR (4th) 249,[2009] OJ No 2465 (QL),265 OAC 27,265 O.A.C. 27,[2009] O.J. No 2465 (QL),96 O.R. (3d) 138,(2009), 265 OAC 27 (CA)
• Date: 04 May 2009
• Court: Court of Appeal (Ontario)

Igbinosun v. LSUC (2009), 265 O.A.C. 27 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.010

The Law Society of Upper Canada (appellant/respondent) v. Matthew Joseal Igbinosun (respondent/appellant)

(C49751; C49744; 2009 ONCA 484)

Indexed As: Igbinosun v. Law Society of Upper Canada

Ontario Court of Appeal

Weiler, Gillese and Watt, JJ.A.

June 16, 2009.

Summary:

Igbinosun was a member of the Ontario Bar. He was accused of sexual assault by three individuals. Criminal charges were laid, but were later stayed on the grounds of delay. The three complainants had each filed complaints regarding Igbinosun with the Law Society of Upper Canada. The Law Society Hearing Panel found Igbinosun guilty of professional misconduct. The Hearing Panel ordered that Igbinosun be disbarred and that he pay costs of $82,042.80. Igbinosun appealed to the Law Society Appeal Panel. The Appeal Panel dismissed the appeal, except for reducing the costs award. The Appeal Panel also held that the delay of some six years in proceeding against Igbinosun did not warrant a stay of proceedings. Igbinosun appealed from the Appeal Panel's decision.

The Ontario Divisional Court, Pitt, J., dissenting, in a decision reported at (2008), 239 O.A.C. 178, allowed the appeal. The court set aside the order of the Appeal Panel and remitted the Law Society's allegations of professional misconduct and, if necessary, penalty, to a newly constituted hearing panel for a full hearing. The court held that the Hearing Panel breached the standards of natural justice in two respects. First, during the liability phase, the Hearing Panel refused to grant Igbinosun a brief adjournment in order for him to be represented by counsel. Second, after the liability phase had concluded, it failed to give Igbinosun adequate notice that it was proceeding with the penalty phase. The Law Society appealed from those holdings. The court declined to interfere with the Appeal Panel's conclusion on the issue of undue delay. Igbinosun appealed from that decision.

The Ontario Court of Appeal dismissed the appeals.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See Barristers and Solicitors - Topic 5235 ].

Administrative Law - Topic 2484

Natural justice - Procedure - At hearing - Adjournments - [See first Barristers and Solicitors - Topic 5242 ].

Barristers and Solicitors - Topic 5235

Discipline - Procedure - Notice of hearing - On September 19, 2006, the Law Society Hearing Panel found Igbinosun guilty of professional misconduct - Igbinosun was not at the hearing - The penalty phase of the hearing proceeded on September 20 - Igbinosun did not attend - The Hearing Panel imposed an order of disbarment - The Ontario Divisional Court held that the Hearing Panel breached the standards of natural justice when it failed to give Igbinosun adequate notice that it was proceeding with the penalty phase of the hearing - The Law Society appealed, arguing that the Divisional Court failed to have regard to s. 7(1) of the Statutory Powers Procedure Act (SPPA) - That section provided "Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding" - The Ontario Court of Appeal dismissed the appeal - While Igbinosun had notice of a proceeding to deal with complaints of misconduct, the notice did not say that the Law Society would proceed with respect to penalty as well - It was not reasonable for Igbinosun to expect that the penalty phase of the hearing would begin immediately after the liability phase - While the Law Society did give Igbinosun some notice of the penalty phase, that notice was not reasonable - As indicated in s. 6(3) of the SPPA, notice of a hearing had to include both the purpose of the hearing and a statement that a failure to attend the hearing may result in the hearing proceeding in the party's absence - The notice supplied to Igbinosun did not disclose that part of the purpose of the hearing was to determine his punishment should he be found guilty - See paragraphs 50 to 65.

Barristers and Solicitors - Topic 5240

Discipline - Procedure - Hearing on question of punishment - [See Barristers and Solicitors - Topic 5235 ].

Barristers and Solicitors - Topic 5242

Discipline - Procedure - Adjournments - The Law Society Appeal Panel upheld a finding of professional misconduct made against Igbinosun by the Law Society Hearing Panel on September 19, 2006, and an order of disbarment imposed by the Hearing Panel on September 20, 2006 - The Ontario Divisional Court held that the Hearing Panel breached the standards of natural justice when it refused to grant Igbinosun a brief adjournment on September 18, 2006, in order for him to be represented by counsel - The Law Society appealed - The Ontario Court of Appeal held that it would not interfere with the Divisional Court's conclusion that Igbinosun was denied natural justice when the request for a brief adjournment on September 18 was denied - The Hearing Panel was required to balance the public interest in having the hearing concluded expeditiously against the prejudice to Igbinosun of being forced to proceed without counsel, taking into consideration the context and circumstances of the case - It did not do so - There was no discernible prejudice to the Law Society or its witnesses in granting a brief adjournment - See paragraphs 28 to 49.

Barristers and Solicitors - Topic 5242

Discipline - Procedure - Adjournments - The Law Society Appeal Panel upheld a finding of professional misconduct made against Igbinosun by the Law Society Hearing Panel on September 19, 2006, and an order of disbarment imposed by the Hearing Panel on September 20, 2006 - The Ontario Divisional Court held that the Hearing Panel breached the standards of natural justice when it refused to grant Igbinosun a brief adjournment on September 18, 2006, in order for him to be represented by counsel - The Law Society appealed - The Law Society submitted that in analyzing the Appeal Panel's reasons, the Divisional Court did not take into account the fact that the September 18 continuation date was made peremptory on Igbinosun - The Ontario Court of Appeal did not agree - Molloy, J., of the Divisional Court addressed the peremptory nature of the September 18 continuation date in her reasons and, in effect, concluded that the Hearing Panel either ought not to have made the September 18 date peremptory or should have been more flexible about adjourning it - The court stated that "One of the purposes of making a hearing date peremptory is to further the public interest in the administration of justice by preventing delay and wasted costs. However, judicial discretion must still be exercised depending on the facts and circumstances of each case, as the overarching purpose of marking a date peremptory is to serve the interests of justice" - Molloy, J., held that the Hearing Panel did not take account of the particular circumstances of this case when it relied on the peremptory nature of the September 18, 2006, hearing date as a basis for dismissing the request for an adjournment - See paragraphs 41 to 43.

Barristers and Solicitors - Topic 5242

Discipline - Procedure - Adjournments - The Law Society Appeal Panel upheld a finding of professional misconduct made against Igbinosun by the Law Society Hearing Panel on September 19, 2006, and an order of disbarment imposed by the Hearing Panel on September 20, 2006 - On appeal, the Ontario Divisional Court held that the Hearing Panel breached the standards of natural justice when it refused to grant Igbinosun a brief adjournment on September 18, 2006, in order for him to be represented by counsel - The Law Society appealed - The Law Society submitted that Molloy, J., of the Divisional Court impermissibly reanalyzed the question of whether the denial of an adjournment on September 18, 2006, was a denial of natural justice - The Ontario Court of Appeal stated that "the Divisional Court rightly held that both the Appeal Panel and the Hearing Panel erred in principle and identified their errors. In the circumstances, Molloy J. was entitled to consider whether Igbinosun's counsel's request for a brief adjournment should have been granted. She concluded that the brief adjournment ought to have been granted and that the Hearing Panel's refusal to do so amounted to a denial of natural justice. I see no error in principle in this decision and it is entitled to deference" - See paragraphs 45 to 46.

Barristers and Solicitors - Topic 5253

Discipline - Defences - Delay - [See Barristers and Solicitors - Topic 5581 ].

Barristers and Solicitors - Topic 5581

Discipline - Appeals - General - The Law Society Appeal Panel upheld a finding of professional misconduct and an order of disbarment made against Igbinosun by the Law Society Hearing Panel - Although Igbinosun had not appealed from the Hearing Panel's refusal to grant a stay of proceedings based on delay (but instead had attacked that ruling collaterally by claiming bias), the Appeal Panel held that the delay of some six years in proceeding against Igbinosun did not warrant a stay of proceedings - On appeal, the Ontario Divisional Court (Molloy, J.) criticized the Appeal Panel's decision to analyze the delay issue afresh, instead of reviewing the Hearing Panel's decision on the issue on a standard of correctness, but found that nothing turned on that failure because the Appeal Panel had come to the same conclusion - Based on findings of breaches of natural justice by the Hearing Panel, Molloy, J., remitted prosecution of the complaints to a new hearing panel to hear afresh - She ruled that if Igbinosun chose to pursue another stay application on the basis of delay, the Hearing Panel was bound by the findings of the initial Hearing Panel with respect to the effects of the delay up to February 27, 2006 - The Ontario Court of Appeal held that Molloy, J., was correct to find that the Appeal Panel should have reviewed the decision of the Hearing Panel on the delay issue, rather than engage in its own analysis - Further, there was no reason to interfere with her conclusion that the Hearing Panel's refusal to stay proceedings was correct - The court also upheld the Divisional Court's order binding the new hearing panel to the findings of the initial Hearing Panel with respect to the effects of the delay up to February 27, 2006 - Since Igbinosun never properly appealed the Hearing Panel's finding on the delay issue to the Appeal Panel, there was no injustice in refusing to allow him to re-argue the matter in a new hearing - See paragraphs 66 to 76.

Barristers and Solicitors - Topic 7608

Regulation - General - Law society practice notes, rules, guidelines or checklists - On September 19, 2006, the Law Society Hearing Panel found Igbinosun guilty of professional misconduct - Igbinosun was not at the hearing - The penalty phase of the hearing proceeded on September 20 - Igbinosun did not attend - The Hearing Panel imposed an order of disbarment - The Ontario Court of Appeal held that the Statutory Powers Procedure Act (SPPA) could not support the Hearing Panel's decision to dispense with the requirement that Igbinosun receive the victim impact statements 10 days prior to the penalty phase of the hearing - Pursuant to s. 61.2(4) of the Law Society Act, in the event that the rules of practice and procedure adopted by the Law Society conflicted with the provisions of the SPPA, the rules adopted by the Law Society were to prevail - Thus, the SPPA could not function so as to entitle the Law Society to dispense with its own rule regarding the timely disclosure of victim impact statements - See paragraph 64.

Cases Noticed:

Khimji v. Dhanani (2004), 182 O.A.C. 142; 69 O.R.(3d) 790 (C.A.), refd to. [para. 37].

Moudry v. Moudry (2006), 216 O.A.C. 84 (C.A.), refd to. [para. 37].

R. v. Wood (J.) (2005), 197 O.A.C. 43; 196 C.C.C.(3d) 155 (C.A.), refd to. [para. 37].

R. v. Hazout (M.) et al. (2005), 201 O.A.C. 235 (C.A.), refd to. [para. 37].

R. v. Marzocchi (G.) (2006), 211 O.A.C. 2 (C.A.), refd to. [para. 37].

Kalin v. College of Teachers (Ont.) (2005), 198 O.A.C. 201; 75 O.R.(3d) 523 (Div. Ct.), refd to. [para. 37].

Ariston Realty Corp. v. Elcarim Inc. et al., [2007] O.T.C. Uned. 602; 51 C.P.C.(6th) 326 (Sup. Ct.), refd to. [para. 37].

Jourdain v. Ontario et al., [2008] O.T.C. Uned. 949 (Sup. Ct.), refd to. [para. 43].

Hytec Information Systems Ltd. v. Coventry City Council, [1997] 1 W.L.R. 1666 (C.A.), refd to. [para. 43].

Sussman Mortgage Funding Inc. v. Superintendent of Financial Services (Ont.) (2005), 204 O.A.C. 237 (C.A.), refd to. [para. 54].

Statutes Noticed:

Law Society Act, R.S.O. 1990, c. L-8, sect. 61.2(4) [para. 64].

Statutory Powers Procedure Act, R.S.O. 1990, c. S-22, sect. 6(1), sect. 6(3), sect. 7(1) [para. 60].

Counsel:

Brian Gover and Katherine Hensel for the appellant/respondent;

Tracey Tremayne-Lloyd and Elyse Sunshine for the respondent/appellant.

These appeals were heard on May 4, 2009, before Weiler, Gillese and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on June 16, 2009.