A Guide to Appeals Proceedings

This guide deals with proceedings in which either the licensee or licence applicant or the Law Society is appealing a decision by the Law Society Tribunal’s Hearing Division.

There are many other types of proceedings at the Law Society Tribunal (the Tribunal), and although all Tribunal proceedings are similar, they are also different in important ways. To learn more about other types of proceedings, please review the relevant guides on the Tribunal website.

All of the legislation, rules, by-laws, and forms that are referred to in this guide can be found on the Tribunal website, and should be read together with this guide.

APPEALS

Either party to a proceeding before the Tribunal’s Hearing Division may appeal a final order to the Appeal Division. (This includes final interlocutory suspension or restriction orders.) Although they are not the final order in a capacity proceeding, orders—or refusals to make orders—that a licensee be examined by a physician or psychiatrist can also be appealed.

A licensee or licence applicant can appeal on any grounds, whereas the Law Society of Ontario (the Law Society) can appeal only on a question that does not rely on facts alone.

If the licensee or licence applicant is appealing a decision, that person is the appellant and the Law Society is the respondent in appeal. When the Law Society appeals a decision, the Law Society is the appellant and the licensee or licence applicant is the respondent in appeal.

Appeals before the Law Society Tribunal generally consist of up to six steps:

1. Starting the appeal
2. Motions
3. Perfecting the appeal
4. The hearing
5. Panel decision and reasons for decision
6. Further appeals

1 – STARTING THE APPEAL

An appeal can be started once the final order in a Hearing Division matter is made. Sometimes the panel reaches a decision on the merits of a conduct case but reserves its decision on penalty to a later date. In these cases, though the licensee may plan to appeal the decision on the merits, they will have to wait until the final order on penalty is released. Licensees do not have to wait for costs orders to be released to appeal Hearing Division decisions.

In order to start an appeal, the appellant must file a Notice of Appeal, together with an Information Sheet, and proof of service with the Tribunal, all within 30 days of the final order being deemed to have been received. If the respondent in appeal gives written consent, this 30-day period can be extended.

Along with the notice of appeal, an appellant must also file with the Tribunal a certificate from the reporting service that recorded the proceedings being appealed, stating that the appellant has ordered the necessary copies of the transcript.

CROSS-APPEALS

Either party can initiate a cross-appeal once they have received notice that the other party is appealing a decision, keeping in mind that the limitations on grounds for cross appeal are the same as on grounds for appeal. When a decision has been cross-appealed, the cross-appeal and the appeal are dealt with in tandem.

APPEALS OF ADMINISTRATIVE SUSPENSION ORDERS

There are some orders that can be made by the Law Society without the involvement of the Tribunal. These are called administrative suspension orders, and mostly relate to infractions such as non-payment of Law Society fees, failing to complete the required professional development hours, failing to secure proper insurance.

Appeals of administrative suspension orders, unlike other appeals, go directly to the Tribunal’s Appeal Division without first going to the Hearing Division.

2 – MOTIONS

When an order is under appeal, the appellant can bring a motion to stay that order until the appeal has been heard and decided. Usually the motion to stay is filed along with the appeal materials. A motion to stay cannot be heard except as part of an appeal, so the motion to stay cannot be filed before the initial appeal documents have been filed. A motion to stay is usually heard by one panelist and is often scheduled to be heard promptly. Other motions are sometimes brought before the appeal hearing. A motion for fresh evidence is heard at the same time as the appeal.

3 – PERFECTING THE APPEAL

The appellant has 60 days after either filing the notice of appeal or after the panel gives its reasons for the final order (whichever comes last) to perfect their appeal. Perfecting an appeal means filing the following documents with the respondent in appeal and the Tribunal:

• appeal book
• factum
• transcripts
• book of authorities

The respondent in appeal will deliver their own documents to the appellant no later than fourteen days before the appeal is scheduled to be heard. If the respondent in appeal has filed a cross-appeal, they have 30 days after being served with the appellant’s documents to serve their own documents.

Once the appeal is perfected, the date for the appeal can be scheduled.  A Proceeding Management Conference may be requested by either party if any issues arise prior to the hearing.

WITHDRAWAL

The appellant can withdraw an appeal at any time by delivering a notice of withdrawal. The appeal can also be deemed withdrawn by the Tribunal if the appellant has not perfected their appeal within six months after the notice of appeal was filed. If the appellant wishes to continue their appeal after it’s been deemed withdrawn, they can bring a motion to reinstate it.

If the appellant is late in perfecting their appeal, the respondent in appeal can make a motion to the Appeal Division to dismiss the appeal for delay.

4 – THE APPEAL HEARING

PROCEEDING MANAGEMENT CONFERENCE

If it appears that the appeal hearing will exceed one day, the scheduling coordinator may schedule an Proceeding Management Conference (PMC) before scheduling a hearing. PMCs are conducted by a single adjudicator and are used to manage appeals so they move toward hearing in a fair and timely manner. The PMC panelist can schedule a further PMC, schedule or adjourn the appeal, or give other directions. In some circumstances, a PMC panelist may also convert the conference into the hearing of a motion. An appellant or respondent in appeal can request a PMC at any time.

PMCs can be held in person at the Tribunal’s office in Toronto, by telephone conference, by videoconference, by written submissions, or any combination of these formats. At the end of the PMC, the panelist will note the results of the conference in an endorsement.

When the information sheet sets out a PMC date, all parties to the proceeding and/or their representatives are required to attend. A party can request to participate by telephone or videoconference. The panelist conducting the PMC may proceed in the absence of a party if the absent party does not attend or send a representative.

APPEAL HEARING

Once an appeal hearing date is scheduled, the Tribunal will send a notice of the hearing to all parties. Hearings can be held in-person, by videoconference, by phone or by written submission. Notice of a hearing will include the date, time, location (or, if not an in-person hearing, necessary instructions) and purpose of the hearing. The notice of hearing also advises that if a person notified does not attend the hearing, the panel may proceed in the person’s absence and the person will not be entitled to any further notice in the proceeding.

A week prior to the hearing, the Tribunal sends all parties a copy of the agenda. The agenda sets out the date, time and location of the hearing. Hearings may be held in English or in French.

The agenda also includes the names of the assigned adjudicators and volunteer duty counsel, if duty counsel has been requested and is available. Self-represented appellants may consult with duty counsel at the hearing, if duty counsel is available.

In appeal proceedings, the appellant presents their case first. Then the respondent in appeal presents their case. Usually in appeals there are no witnesses called or fresh evidence introduced unless a motion for fresh evidence has been made; in these cases, fresh evidence is usually presented by affidavit.

Every hearing is open to the public, unless there is an order directing otherwise. The date, time and place of the hearing, along with the notice of appeal, are published on the Tribunal’s website. Additionally, every oral hearing is recorded by a reporting service in order to permit the production of a transcript of the hearing. Anyone can order a copy of the transcript of a public hearing from the reporting service. If a party obtains a transcript, they must file a copy of it with the Tribunal unless the other party has already done so.

TRIBUNAL BOOK OF AUTHORITIES

The Tribunal Book of Authorities includes a regularly updated list of frequently cited Tribunal cases. It can be useful for licensees to consult the Tribunal Book of Authorities when they are first reviewing relevant caselaw. Cases in the Tribunal Book of Authorities do not need to be reproduced in the licensee’s Book of Authorities, but can instead be referenced using the case’s citation.

5 – PANEL DECISION AND REASONS FOR DECISION

At the end of the hearing of the appeal, the panel may:

1. make its decision and provide written reasons later; or
2. reserve its decision.

In either case – if the panel decides right away or reserves – the final decision will be reflected in a formal order. The Tribunal will send the parties the order and written reasons by e-mail. The order and reasons are deemed to be received on the following business day. Once it is deemed received, the order is published on the Tribunal’s Case Documents web site and in the Ontario Reports. All reasons are published on the Canadian Legal Information Institute (CanLII) website and QuickLaw.

Costs can be dealt with at the same time that the hearing concludes, or at a later date after submissions from the parties. These submissions can be made at a later hearing or in writing.

Costs can be awarded against the licensee or licence applicant-appellant if a determination against them is made, or if they caused costs to be incurred without reasonable cause, or to be wasted by undue delay, or by negligence or other default. Costs can be awarded against the Law Society if a determination against them is made,  or if they caused costs to be incurred without reasonable cause, or to be wasted by undue delay, or by negligence or other default. The tariff for the calculation of costs is available as an appendix to the Rules of Practice and Procedure, which can be found on the Tribunal’s website.

6 – FURTHER APPEALS

APPEALS TO DIVISIONAL COURT

If the appeal is from a decision in a conduct or a capacity proceeding, Appeal Division decisions may be further appealed to the Divisional Court. The licensee can appeal Appeal Division decisions to the Divisional Court on any grounds, whereas, unless the appeal is of a costs order, the Law Society may only appeal on an question that is not reliant on facts alone. Appealing to the Divisional Court does not automatically stay a decision; therefore, if a licensees wants to stay an order, they must bring a motion to stay to the Divisional Court.

If the proceeding that has been appealed from is not a conduct or capacity proceeding (for instance, licensing proceedings), appellants cannot appeal, but may apply to the Divisional Court for judicial review.

As with appeals from Hearing Division decisions, appellants can only appeal decisions of the Appeal Division once the final order has been made. Appellants are not required to wait for costs decisions to appeal decisions from the Appeal Division.