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Abuse of Process - Administration of Justice into Disrepute. Mazo v. Law Society of Ontario
In Mazo v. Law Society of Ontario (Div Court, 2024) the Ontario Divisional Court dismissed a JR, here against a Law Society Tribunal's refusal to issue a stay (for abuse of process) of misconduct charges.
Here the court sets out JR prematurity doctrine, and the limits on it's exceptions - including that abuse of process is not per se one:[13] The other aspect of the serious issue to be heard in this application, involves the question of prematurity. Justice Davies left this issue open in her Rule 2.1 and extension findings. In David v. Law Society of Ontario, 2021 ONSC 4606 at paragraph 14, the Divisional Court held as follows,It is well established that, absent exceptional circumstances, the court will not interfere with an administrative process until it has run its course. To do otherwise would unnecessarily fragment the proceedings and cause delay: Landry v. Law Society of Upper Canada, 2011 CanLII 99902 (Div. Ct.), at paras. 15-19. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at para.33, exceptional circumstances are very narrow and do not even include “[c]oncerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts … as long as that process allows the issues to be raised and an effective remedy to be granted. [14] In paragraph 16 of that decision, the court found that a claim of an abuse of process did not constitute exceptional circumstances. Mr. Hutchison submits that this abuse of process is different because it is brought under the residual or second head of the abuse of process doctrine whereby the court could find that the hearing itself could bring the administration of justice into disrepute. On that basis, we need to stop the hearing in order to prevent the very harm that the doctrine of abuse of process is designed to denounce and prevent.
[15] But, in my view, a lot of things can happen.
[16] The Law Society may not seek to introduce the disputed documents into evidence. The Law Society Tribunal could exclude them and draw an adverse credibility finding against the investigator. Ms. Mazo could win the proceeding and have all charges dismissed against her. Any of those findings could make this proposed judicial review proceeding moot. In other words, there are lots of possible outcomes irrespective of the alleged abuse of process.
[17] Fragmentation of the proceeding causes delay and extra costs. It’s inefficient and therefore generally not allowed unless absolutely necessary to avoid special circumstances or harm. In precedents like David, allegations of abuse of process were found not be a basis for a stay. Harm might occur or it might not.
[18] If the proceeding goes ahead, and ultimately the court finds that an abuse of process occurred, there can still be public denunciation and punitive costs awarded to compensate Ms. Mazo.
[19] In light of the clear findings though of Justice Schabas for the panel in Kahissay v. Insurance, 2023 ONSC 3650 at paragraph 9, I cannot find that an abuse of process can be a basis for interlocutory fragmentation of an administrative proceeding. In my view, this proceeding has no realistic chances of success on the merits because it is premature.
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[22] Given that the alleged abuse of process arguments will still be available to Ms. Mazo at the Law Society Tribunal and before the court in any ultimate appeal of the Law Society decision (after an intermediate appeal to the Law Society Appeal Tribunal of course), the balance of convenience favours getting the hearing done so that all necessary findings of fact and law on all issues will be available to the Appeal Tribunal and the court if necessary.
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