



COURT OF APPEAL FOR ONTARIO

CITATION: Dioguardi Tax Law v. The Law Society of Upper
    Canada, 2016 ONCA 531

DATE: 20160705

DOCKET: C60739

MacPherson, Simmons and Lauwers JJ.A.

BETWEEN

Dioguardi Tax Law, Philippe Joseph Mario
    Dioguardi and Paul Dioguardi

Applicants/Appellants on Appeal

and

The Law Society of Upper Canada and

The
    Attorney General of Ontario

Respondent/Respondents on Appeal

APPLICATION UNDER Rule
    14.05(3)(a), (b), (d), (g), and (h) of the
Rules of Civil Procedure

Melvyn L. Solman and Matthew Valitutti, for the
    applicants

Glen M. Stuart, for the respondent, The Law Society of
    Upper Canada

Sean Hanley and Hayley Pitcher, for the respondent,
    Attorney General for Ontario

Heard: June 29, 2016

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated June 9, 2015.

ENDORSEMENT

[1]

The appellant lawyers and law firm appeal the judgment of Belobaba J. of
    the Superior Court of Justice dated June 9, 2015 dismissing the appellants
    application for (1) an order protecting the confidentiality of solicitor-client
    privileged information of its clients who have lodged complaints against them;
    (2) an order declaring that the legislative scheme in the
Law Society Act
,
    R.S.O., 1990, c.L.8, related to the Law Society of Upper Canadas investigation
    powers violated the
Charter
ss. 7 and 8 rights of these
    clients/complainants; and (3) an order granting the appellants public interest
    standing to make the
Charter
arguments on behalf of all
    clients/complainants in Ontario, if necessary.

[2]

The application judge determined that the application was premature:

[1]      Absent exceptional circumstances, courts should not
    interfere with ongoing administrative processes until after they are completed
    or until the available effective remedies are exhausted.

...

[14]    In short, there is every good reason to allow the administrative
    process in this case to run its course.  The Law Society Tribunal should be
    allowed to decide at first instance whether the constitutional arguments
    advanced herein are well-founded and, in particular whether there is any room
    in the legislative design and policy of the Act for the specific client-focused
    protections being sought by the applicants. The Law Society Tribunal has the
    expertise and the experience to consider the applicants submissions and
    proposed reforms and make the required determinations at first instance.  And
    the court (should the matter get to court) would benefit greatly from this
    expert tribunals reasons and decision.

[3]

The appellants raise the same issues on this appeal that they advanced
    on the application.  At the appeal hearing, we called on the parties to address
    the issue of prematurity.

[4]

Our conclusion on this issue is simple: we agree with the application
    judges conclusion and with his reasons in support of the conclusion.

[5]

Since the application judges decision was released, the Supreme Court
    of Canada rendered decisions in
Canada (Attorney General) v. Chambre des
    notaires du Québec
, 2016 SCC 20, and
Canada (National Revenue) v.
    Thompson
, 2016 SCC 21.

[6]

The appellants were granted leave to file a supplementary factum after
    these decisions were released.  In their factum, the appellants assert that in
Thompson
the Supreme Court has articulated a clear directive to the courts to
    facilitate (para. 39) the requirement to ensure that the client is given the
    opportunity to protect his or her own solicitor-client privilege and that,
    therefore, an application direct to the superior court is the proper route for
    raising this issue.

[7]

We disagree. There is nothing in
Thompson
or
Chambre des
    Notaires
to suggest that the superior court (and this court) should
    determine the merits of their
Charter
challenge and obtain a remedy
    before exhausting their administrative remedies. The application judge was
    correct to follow the decisions in
Volochay v. College of Massage
    Therapists of Ontario
, (2012) 111 O.R. (3d) 561 (C.A.), at paras. 68-71,
    and
C.B. Powell Ltd. v. Canada
, [2010] F.C.J. No. 274 (C.A.), at para.
    32, on this issue.

[8]

The appellants also seek leave to appeal the application judges costs
    awards of $20,000 to the Law Society of Upper Canada and $30,000 to the
    Attorney General of Ontario.

[9]

We see no reason to interfere with these awards, especially against the
    backdrop of the appellants bill of costs of $100,000 for the application.

[10]

The appeal is dismissed.  The respondents Law Society of Upper Canada
    and Attorney General of Ontario are entitled to their costs of the appeal fixed
    at $12,500 and $7,500 respectively inclusive of disbursements and HST.


J.C. MacPherson J.A.

Janet
    Simmons J.A.


P.
    Lauwers J.A.


