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Fairness - Intentional Tribunal Delay. Law Society of Ontario v. Colangelo
In Law Society of Ontario v. Colangelo (Div Court, 2024) the Divisional Court dismissed an LSO-brought JR on the LSO-licensing issue of 'good character', here for someone "who is serving a criminal sentence".
Here the LSO argued procedural unfairness where the Hearing Division intentionally delayed it's decision because "the panel prefers to conduct its analysis of Ms. Colangelo’s character at a time when her custodial period is at or near completion." The LSO couched this issue as both procedural unfairness and bias:The Procedural Fairness Issue
The Decision of the Hearing Division
[53] At the conclusion of the two-day hearing, on May 19, 2022, the Hearing Panel reserved its decision. In its endorsement, dated May 18-19, 2022, the Panel stated that it would delay releasing its decision until November 1, 2022. The endorsement further noted that if anything occurred between May 18, 2022, and October 14, 2022, that was relevant to good character, the parties had until October 18, 2022, to submit an affidavit setting out the relevant evidence, accompanied by short written submissions detailing the impact it had on the good character decision. The other party would have 7 days to respond.
[54] The endorsement was delivered on May 26, 2022. That same day, counsel for the LSO e-mailed the Tribunal asking for clarification as to why there would be a six-month delay in issuing the reasons. On June 16, 2022, the Panel responded stating that “the reason for reserving the decision is that the panel prefers to conduct its analysis of Ms. Colangelo’s character at a time when her custodial period is at or near completion.” The deadline to object to the Tribunal’s timeline was extended to June 23, 2022.
[55] On June 23, 2022, LSO’s counsel submitted an objection to the Panel’s chosen manner of proceeding. Among other things, the LSO submitted that the Panel should base its decision on evidence presented at the hearing, and that it was contrary to the principles of natural justice for the Panel to unilaterally decide to re-open the case and accept further evidence.
[56] On August 8, 2022, the parties received a further endorsement, dated August 5, 2022, in which the Panel summarized its previous endorsements and the LSO’s objections. The endorsement concluded by stating that since Ms. Colangelo took no position on the LSO’s objection, and despite the fact that the procedure set out in the May 18-19 endorsement was efficient and in the interests of both parties, the Panel would provide its reasons in the normal course and without accepting further evidence.
[57] The hearing division’s reasons for decision and the order were released on November 11, 2022.
The Decision of the Tribunal Re Procedural Fairness
[58] The release of the reasons from the hearing division almost coincided with the completion of the Respondents conditional sentence (conditional sentence completed November 23, 2022; Reasons of the hearing division released November 11, 2022). On appeal to the Tribunal the LSO argued that the hearing division failed to abide by the principles of natural justice in the process that it followed prior to the release of its reasons. Specifically, the LSO argued that by delaying the release of its reasons until the Respondent had completed her conditional sentence resulted in a process that was procedurally unfair and created an appearance of bias which had tainted the decision.
[59] The Tribunal framed part of the argument by the LSO as one that suggested the hearing division had “deliberately delayed” the release of its reasons to coincide with the completion of the Respondent’s conditional sentence. Dealing with that argument the Tribunal concluded at paras. 76 and 77 of its reasons as follows:[76] Furthermore, there was no reason for the hearing panel to deliberately delay its decision. The hearing panel dealt directly with fact that Ms. Colangelo was still serving her sentence in its reasons and by including in its order the restriction that she may not commence providing legal services until she has served her sentence. It was open to the panel to make this order in June or at any time prior to the eventual issuance of the order in November.
[77] The hearing panel’s reasons do not indicate that the panel relied on the fact that Ms. Colangelo’s conditional sentence order was near an end in granting her application for licence. Rather, it based its decision to grant the licence on its finding that Ms. Colangelo is currently of good character. [60] The LSO also argued that the endorsement from the hearing division released May 18-19, 2022, “to conduct its analysis of Ms. Colangelo’s good character at a time when her custodial period is at or near completion” was inappropriate and that it amounted to an unfair process. The LSO further argued that the delay in the release of the hearing division’s reasons gave rise to a reasonable apprehension of bias.
[61] The arguments made by the LSO regarding procedural unfairness and bias were rejected by the Tribunal. In doing so it was noted by the Tribunal that the offer by the hearing division to receive additional evidence from the parties after the completion of the hearing was objected to by the LSO and was not accepted by either party. As such no additional evidence was provided to the hearing division and none was relied upon.
[62] In rejecting the Tribunal’s unfairness and bias arguments the Tribunal at paras. 89-91 stated:[89] ... . . Whatever the hearing panel’s motives were for initially requesting additional evidence and proposing to delay its decision until closer to the time when Ms. Colangelo’s custodial sentence was completed, the endorsements do not indicate bias and do not taint the panel’s decision.
[90] An informed person viewing this case realistically and practically would not conclude that it was more likely than not that the panel, whether consciously or unconsciously, would not decide fairly. 12 2015 SCC 25. 13 Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC). 2023 ONLSTA 16 (CanLII) 18.
[91] The strong presumption of impartiality of the judiciary applies to the panels of this Tribunal. There is a high burden on a party alleging bias and the Law Society has not met that burden in this case.
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