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Representation - LSO - Complaints. Benbella v. Law Society of Ontario
In Benbella v. Law Society of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a decision by the Law Society of Ontario (“LSO”) to close a complaint he made against a lawyer".
In this brief case the court, while finding (and applying to dismiss) 'mootness', apparently ignored the second stage of the Borowski process - that of considering it's discretion to hear the matter regardless, this despite there being useful issues involved:[1] Dr. Hocine Benbella has brought an application for judicial review of a decision by the Law Society of Ontario (“LSO”) to close a complaint he made against a lawyer. Dr. Benbella takes the position that the LSO is required to file a record of proceedings in accordance with s. 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”). The LSO disagrees and submits that the closing of the complaint was not a “statutory power of decision” within the meaning of s. 1 of the JRPA, therefore it is not required to file a record of proceedings. Following a case conference, Nakatsuru J. directed that this issue be determined on a motion made in writing. Both parties filed factums and records on the motion.
[2] Having reviewed the material filed on the motion, it is evident that the LSO’s motion record contains everything the moving party sought to have provided in a record of proceedings, thereby rendering the motion moot.
[3] The moving party’s request, as set out in his factum, is for:... materials that were before the decision-maker when the Applicant’s complaint was screened and closed, including the complaint, any attachments, submissions, correspondence, summaries, or information received from any source and considered at the screening stage, subject to any valid claims of privilege. [4] In its record filed on this motion, the responding party included an affidavit from Neil Foley, the Team Manager of the Intake and Resolution Department in the Professional Regulation Division of the LSO, which described the process whereby complaints are screened. Complaints are initially reviewed by law clerks working under the supervision of Team Managers. The clerk considers whether the complaint is within the LSO’s jurisdiction and raises issues with a licensee’s conduct. If not, the clerk can recommend that the complaint be closed. Otherwise, the complaint is assigned to Intake and Resolution Counsel.
[5] The affidavit described how the moving party’s complaint was processed:The Applicant’s complaint was assigned to Naqeeb Ahmad, Law Clerk at Intake & Resolution. As a law clerk, Mr. Ahmad conducted a review of the Applicant’s complaint and the supporting materials he provided to make an initial determination whether it raised issues with the Licensee’s conduct and whether it was within the Law Society’s jurisdiction. As part of this review, Mr. Ahmad would have considered relevant rules of professional conduct and related commentary.
....
At the end of the review, it was determined that the Law Society would not take further action on the complaints.
In its factum on the motion, the responding party continued to take the position that it was not required to produce a record, but confirmed that if it was required to do so, “the extent of the record of proceedings is that which has been provided to the moving party.” [6] In his reply factum, the moving party indicates that he is not satisfied with the contents of the Foley affidavit, which he submits is a “litigation-generated narrative describing the process after judicial review has been commenced” rather than “an identifiable, contemporaneous description of the decision-making inputs themselves.” He continues to seek an order requiring the responding party to identify the material that was before the decision-maker, or “if no such materials exist beyond the complaint package, confirm that fact by affidavit sworn by a person with direct knowledge.”
[7] In my view, the Foley affidavit provides exactly what the moving party asked for. It confirms that no materials beyond the complaint package were before the decision maker, except for relevant Rules of Professional Conduct, which are easily accessible. Assuming, without deciding, that the responding party is required to comply with s. 10 of the JRPA, it has done so.
[8] In the result, the motion is dismissed as the moving party already has what he seeks.
[9] While the responding party was successful and seeks costs, it could have provided the material in the motion record far sooner while reserving its right to take the position that there has been no statutory power of decision, which may have obviated the need for this motion. The responding party also advanced various detailed arguments about privilege despite the moving party having clearly stated that he was not seeking privileged material. In all the circumstances, there will be no order as to costs.
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