



COURT OF APPEAL FOR ONTARIO

CITATION: Coady v. The Law Society of Upper Canada, 2015 ONCA
    876

DATE: 20151210

DOCKET: M38163

van Rensburg J.A. (In Chambers)

BETWEEN

Mary Martha Coady

Applicant

and

The Law Society of Upper Canada

Respondent

Mary Martha Coady, acting in person

Jaan E. Lilles, for the respondent

Heard: December 2, 2015

ENDORSEMENT

[1]

Martha Coady was involved in contentious discipline proceedings with the
    Law Society of Upper Canada (the Law Society) for several years. The
    proceedings resulted in findings of professional misconduct and the revocation
    of Ms. Coadys licence to practise.

[2]

In the course of her discipline proceedings before the Law Society
    Hearing Panel  in fact, on the second day of evidence in her conduct hearing
[1]

    Ms. Coady brought a motion for a stay of proceedings. She argued that the
    Hearing Panel had no jurisdiction to commence the conduct hearing because the Law
    Society failed to comply with the mandatory preconditions for a hearing, including
    obtaining the authorization of its Proceedings Authorization Committee. Based
    on this, she argues that the discipline proceeding was a nullity. I refer to
    this as the jurisdiction issue.

[3]

A stay of proceedings was refused by the Hearing Panel on February 26,
    2008. Ms. Coadys appeal of this decision to the Appeal Panel was quashed on
    motion by the Law Society on July 28, 2008. The Appeal Panel concluded that the
    appeal was not from a final decision or order within the meaning of s. 49.32 of
    the
Law Society Act
, R.S.O. 1990, c. L.8, and that it lacked
    jurisdiction to hear the appeal
.
The Appeal Panel also concluded that
    it remained open to Ms. Coady to raise the issue of jurisdiction before the
    Appeal Panel, should the Hearing Panel complete the proceedings against her and
    make findings of professional misconduct.

[4]

Ms. Coady appealed to the Divisional Court. The appeal was quashed by
    order dated October 20, 2009 (the 2009 Divisional Court Order). In his
    reasons for decision, Dambrot J., for a three judge panel, referred to s. 49.38
    of the
Law Society Act
, which provides for an appeal to the Divisional
    Court from a final decision or order of the Appeal Panel. He held that the
    Appeal Panels decision quashing the appeal of an interlocutory decision was
    itself interlocutory. As such, there was no right to appeal to the Divisional
    Court. Dambrot J. reminded Ms. Coady of the Appeal Panels conclusion that
    she could raise the issue of jurisdiction before the Appeal Panel if the
    Hearing Panel made findings of misconduct against her.

[5]

Ms. Coady decided to challenge the 2009 Divisional Court Order, and to
    pursue her jurisdiction argument before this court. She brought a motion before
    a single judge of this court, which was originally returnable November 10,
    2009. By that time, Ms. Coady had been found guilty of professional misconduct
    (on June 3, 2009), and the penalty stage of the proceedings was underway
    (resulting in the revocation of her licence on January 8, 2010).

[6]

In her November 2009 motion to this court, Ms. Coady requested leave to
    have a special case determined in the first instance by the Court of Appeal
    (purportedly under rule 22.03 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194), relying on an agreed statement of facts that was before the Hearing
    Panel in 2007. She also sought directions in respect of a motion for leave to
    appeal the 2009 Divisional Court Order. The motion also sought a stay of the
    discipline proceedings pending disposition of the motion.

[7]

The motion was not heard in November 2009, and after a number of
    adjournments, the last of which was on January 15, 2010, Ms. Coady took no
    further steps to advance her motion.

[8]

Ms. Coadys inaction in respect of the November 2009 motion is
    understandable, as by then she had continued to argue the jurisdiction issue in
    the discipline proceedings, including in her appeal to the Appeal Panel and in
    her appeal of the decision of the Appeal Panel, dated April 11, 2012, to the
    Divisional Court. Eventually, the Divisional Court dismissed her appeal (the
    2014 Divisional Court Order). Nordheimer J., for a three judge panel, determined
    the issue in his reasons for decision of December 4, 2014, dismissing Ms.
    Coadys appeal:
Coady v. Law Society of Upper Canada
, 2014 ONSC 5711,
    [2014] O.J. No. 4664, at paras. 6 to 10.

[9]

On July 28, 2015, the Registrar of this court notified Ms. Coady that
    since her November 2009 motion had not been pursued in a timely manner, the
    motion was scheduled for a hearing to determine its status on August 10, 2015.
    That day, after noting that Ms. Coady persisted in pursuing the relief sought
    in the motion, Blair J.A. refused to dismiss the motion as abandoned, and
    adjourned the motion to December 2, 2015 peremptory to Ms. Coady.

[10]

It
    is this motion, originally filed in November 2009, and seeking leave to have a
    special case determined in the first instance by this court, and directions
    for leave to appeal the 2009 Divisional Court Order, as well as other relief,
    that I must now determine.

[11]

For
    the reasons that follow, the motion is dismissed.

Motion for Court of Appeal to
    Hear a Special Case

[12]

Rule
    22 of the
Rules of Civil Procedure
provides for parties to move before
    a judge to state a special case. Rule 22.01 provides:

(1) Where the parties to a proceeding
    concur in stating a question of law in the form of a special case for the
    opinion of the court, any party may move before a judge to have the special
    case determined.

(2) Where the judge is satisfied that
    the determination of the question may dispose of all or part of the proceeding,
    substantially shorten the hearing or result in a substantial saving of costs,
    the judge may hear and determine the special case.

[13]

An
    order can only be made where the parties to the proceeding concur in stating a
    question of law in the form of a special case for the opinion of the court, and
    where the judge is satisfied that the test for leave under rule 22.01(2) is met.
    In this case, there is no agreement by the Law Society to state a case.

[14]

Ms.
    Coady relies on rule 22.03(1) which provides as follows:

A motion under rule 22.01 may be made
    to a judge of the Court of Appeal for leave to have a special case determined
    in the first instance by that court and the judge may grant leave where subrule
    22.01 (2) is satisfied and where the special case raises an issue in respect of
    which,

(a) there are conflicting decisions
    of judges in Ontario and there is no decision of an appellate court in Ontario;

(b) there is a conflict between
    decisions of an appellate court in Ontario and an appellate court of another
    province, or between decisions of appellate courts of two or more other
    provinces; or

(c) one of the parties seeks to
    establish that a decision of an appellate court in Ontario should not be
    followed.

[15]

Rule
    22.04 prescribes the form for a special case (Form 22A) which must (a) set out
    the material facts, agreed on by the parties, that are necessary to determine
    the question stated; (b) refer to and include a copy of any documents necessary
    to determine the question; (c) set out the relief sought, as agreed on by the
    parties, on the determination of the question of law; and (d) be signed by the
    lawyers for all the parties in the proceeding. No such form of special case has
    been filed in this case, as the Law Society does not agree with this procedure.

[16]

In
    her submissions, Ms. Coady makes a number of arguments directed to meeting the
    test under rule 22.03(1)(a) and (b) for determination by this court of the
    jurisdiction issue. Ms. Coady asserts that she can look directly to rule 22.03,
    as all that is required is to satisfy one of the three criteria under rule
    22.03(1) (a), (b) or (c) She argues that it is not necessary for the parties to
    agree to state a case, provided that they agree on the relevant facts, and she
    contends that it is sufficient if the parties, at some time in the past, agreed
    to certain facts. In this regard, she proposes to put the jurisdiction issue
    before this court, using the Agreed Statement of Facts signed by the parties
    before the Hearing Panel in December 2007.

[17]

Ms.
    Coady is wrong in her interpretation of the relevant rules. Rule 22 requires that
    the parties must agree to invoke the special case procedure for determination
    of a point of law. They must agree on the point of law, and they must submit
    their stated case with the elements required by the prescribed form.  These are
    the requirements for
all
special cases stated to a court, including
    this court. Only if these conditions are met may the parties move directly to
    the Court of Appeal, in which case they will need to meet the additional test
    set out in rule 22.03(1)(a), (b) or (c): see
Seed v. Delhey
(1989), 67
    O.R. (2d) 317 (C.A.)

[18]

As
    the necessary preconditions are absent, Ms. Coadys motion under rule 22 to
    state a special case to determine the jurisdiction issue is dismissed.

Motion for Directions on Leave to Appeal

[19]

Ms.
    Coady seeks directions with respect to a motion for leave to appeal the 2009
    Divisional Court Order. In particular, she asks that the motion be heard by a
    bilingual panel. There is, however, no pending motion for leave to appeal
    (which would have to be brought in writing before a three judge panel).

[20]

The
    Law Society asserts that the motion for directions should be dismissed because
    there is no pending motion for leave to appeal. Further, the Law Society argues
    that, as a result of Ms. Coadys delay and the intervening developments in her
    proceedings with the Law Society, any motion for leave to appeal the 2009
    Divisional Court Order should not be permitted to proceed.

[21]

I
    agree with the Law Societys position. As there is no pending motion for leave
    to appeal the 2009 Divisional Court Order, no directions can be given, and the
    issues raised by the proposed appeal have been overtaken by the further
    developments in the discipline proceedings. Ms. Coady attempted to litigate the
    jurisdiction issue before the Appeal Panel and then through to the Court of
    Appeal in 2009, following the refusal of a stay by the Hearing Panel in her
    discipline proceedings. The argument that the appeals to the Appeal Panel and
    to the Divisional Court ought not to have been quashed, so as to permit the
    determination of the jurisdiction issue, has been rendered moot. Ms. Coady has now
    argued the jurisdiction issue before both the Appeal Panel and the Divisional
    Court, in a final and not interlocutory context. There is simply no basis for
    any motion for leave to appeal the 2009 Divisional Court Order at this time.

[22]

In
    the course of her argument in this motion, Ms. Coady also asked that the court
    extend the time so that she can bring a motion for leave to appeal the 2014
    Divisional Court Order. The Law Society opposed the request.

[23]

The
    materials recently filed in respect of this motion disclose that Ms. Coady
    attempted to file a motion returnable November 27, 2014 for directions,
    including an extension of time for leave to appeal the 2014 Divisional Court
    Order. That motion was never scheduled and the materials were returned to her
    as deficient. Despite communications from counsel for the Law Society over the
    next several months, Ms. Coady did not take any steps to bring forth that
    motion, with the result that neither a motion for leave to appeal the 2014 Divisional
    Court Order, nor a motion to extend time to do so, is before this court.

[24]

The
    Law Society objects to any relief being granted in respect of a motion that is
    not properly before the court.

[25]

I
    am not prepared to address any request for an extension of time for leave to
    appeal the 2014 Divisional Court Order. The motion is not properly before the
    court, the record is incomplete and the question was raised only indirectly in
    response to this motion.

Disposition

[26]

For
    these reasons, Ms. Coadys motion under rule 22 and for directions in respect
    of a proposed motion for leave to appeal the 2009 Divisional Court Order is
    dismissed.

[27]

The
    Law Society is entitled to its costs of this motion. If the parties are unable
    to agree on the amount, they may exchange and file with the court within 30
    days written submissions, limited to three pages each, not including the Law
    Societys bill of costs.

K. van Rensburg J.A.





[1]

This was the second hearing panel to consider the matter. The first
    hearing began in 2002, and ended when the Hearing Panel members recused
    themselves. The new Hearing Panel was constituted in November 2007.


