A Guide to Capacity Proceedings
This guide is for general information only and does not provide a complete summary of the law. Independently or together with other guides, this guide should not be taken as legal advice or a determination of how the Law Society Tribunal would decide any particular issue, or interpret rules, legislation, practice directions, policies or other documents.
This guide is meant to be read with other information found on the Tribunal’s website:
Hearings before the Law Society Tribunal generally consist of six steps:
- Commencement of the proceeding
- Scheduling of the hearing
- Before the hearing
- Panel decision and reasons for decision, if any
- Appeal, if any
Proceedings are initiated by an applicant. An applicant can be:
- the Law Society of Ontario (Law Society),
- a lawyer or paralegal licensee, or
- a lawyer or paralegal licensee applicant for licence.
The Law Society may initiate these proceedings:
- retired judge appearing as counsel
- working with or employing unauthorized persons
A licensee may initiate these proceedings:
- terms dispute
This document describes the hearing process that applies to capacity proceedings initiated by the Law Society.
1 – COMMENCEMENT OF THE PROCEEDING
The Law Society commences a capacity proceeding by serving, and then filing, a notice of application and information sheet. (Rule 3.1.) The Law Society must also complete a confirmation of service form. The Law Society requires approval from the Proceedings Authorization Committee (PAC) to commence a proceeding. (section 38 of the Law Society Act.) See the Current Proceedings page of the Tribunal’s website for examples of current notices of application.
PAC authorizes a capacity proceeding when it has reasonable grounds to believe that you are incapacitated.
If you speak French, you may require that every hearing in the proceeding be conducted in the French language by notifying the Tribunal within 30 days after you are deemed to have been served. (Rule 9.4(2).)
The information sheet will either set out a hearing date or a proceeding management conference (PMC) date to determine a hearing date and any other preliminary issues.
The information sheet will also set out where the hearing will take place. Hearings usually take place at the offices of the Law Society Tribunal in Toronto, although you can request that a hearing be elsewhere in certain circumstances. (Rule 9.5.)
You are entitled to accommodation under the Human Rights Code. You must notify the Tribunal as early as possible if you or your witnesses have accommodation needs (within the meaning of the Human Rights Code) during the conduct of a hearing. (Rule 6.5.)
2 – SCHEDULING OF THE HEARING
A hearing may be scheduled by a panelist or by the Tribunal Office. (Rule 6.2.)
Once your matter is scheduled, the Tribunal will send a notice of the hearing to all parties. Notice of an oral hearing will include the date, time, location and purpose of the hearing and 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. (Rule 6.7.) If it is an electronic hearing, including a teleconference, any necessary instructions will be included.
The Upcoming Hearings page of the Tribunal’s website lists proceedings to be heard by the Hearing and Appeal Divisions in the upcoming weeks.
PROCEEDING MANAGEMENT CONFERENCE – RULE 7.5
Where the information sheet sets out a proceeding management conference (PMC) date, all parties to the proceeding, or their representatives, are required to attend at or participate in the PMC. Your representative can attend instead of you. You may participate in person or ask to participate by telephone. A PMC may also take place in writing, if permitted by the panelist. The panelist conducting the PMC may proceed in your absence if you do not attend or you do not send a representative. (Rule 6.7.) The panelist will prepare an endorsement after your matter is heard that sets out the next steps.
Duty counsel is often available at the PMC. The PMC duty counsel program is provided by volunteers. Where available, duty counsel remain at the Tribunal until 12:00 p.m. on all regularly scheduled PMC days and may be consulted whether you have a PMC appearance on that day or not. The PMC days are on the “Hearings” page of the Tribunal website. If you do not have a representative, you may be contacted by duty counsel in advance of the PMC to determine whether duty counsel may be of some assistance. You may also consult with duty counsel at the PMC, if they are available and you are self-represented. However, there is no guarantee that duty counsel will be available.
There may be many files scheduled to be heard at the PMC. If there is a list of matters, you will have to wait until your matter is called. If you are participating by telephone, the attending Clerk to Tribunal will call you at the number you provided when it is your turn.
Appearances at the PMC are usually short and often address scheduling issues, for example scheduling a pre-hearing conference, a motion hearing or the hearing of the merits. A PMC panelist may also set timelines for the production of an agreed statement of facts, a request to admit, a professional report or disclosure; set timelines for the cross – examination of witnesses; and provide any needed directions to the parties.
At a PMC, the panelist may (Rule 7.6.):
- schedule another PMC – For example, so that the parties will come back to report to the panelist on progress made in preparing for the hearing;
- direct the parties to attend at a pre-hearing conference (Section 3 – Before the hearing, below, and Rules 7.11 – 7.13 for more about pre-hearing conferences);
- schedule or reschedule a pre-hearing conference (Section 3, below, and Rules 7.11 – 7.13 for more about pre-hearing conferences). Pre-hearing conferences are “off the record” meetings with the parties and a panelist. There is no transcript but any agreements made will be recorded by the panelist in the endorsement;
- schedule or adjourn a hearing;
- make a not public order, non-disclosure order or publication ban; and
- give directions.
You or the Law Society can also request a PMC at any time. (Rule 7.5.) For example, if you absolutely must seek to adjourn a set hearing date, you must ask for the adjournment at the PMC if there is time to do so. (Rule 6.3 and the practice direction regarding adjournment requests.)
3 – BEFORE THE HEARING
REQUEST TO ADMIT – RULE 11.3
The Law Society may serve you with a request to admit (Form 29) at any time but not later than 30 days before the hearing, if the RTA is 75 paragraphs or less. If it is longer, it must be served at least 50 days in advance (76-200 paragraphs) or 70 days in advance (200+ paragraphs). (Rule 11.3(1).) You have 20 days (or 40 or 60) after that to respond with a response to request to admit. (Form 30; Rule 11.3(2).) Time periods are calculated according to Rule 2.5. You can also serve the Law Society with a request to admit. The same time periods would apply.
If you do not respond, you are deemed to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit for the purposes of the proceeding only. (Rule 11.3(4) and (5).)
DISCLOSURE – RULE 10
In capacity proceedings, the Law Society shall make such disclosure to you as is required by law, including all arguably relevant documents, and shall provide, not later than 20 days before hearing:
- a document book containing all anticipated documentary evidence;
- a list of witnesses the Law Society intends to call; and
- an affidavit, signed witness statement or a summary of the anticipated oral evidence of the witness. (Rule 10.5)
The licensee must also comply with this rule, no later than 10 days before the capacity hearing.
If either party does not provide the disclosure that is required, then that evidence may not be introduced at the hearing, except with leave of the panel. (Rule 10.7.)
PRE-HEARING CONFERENCE – RULE 7.7 (BEFORE OR DURING THE HEARING)
Although it is called a pre-hearing conference (PHC), a PHC can happen at any time before the completion of the hearing on the merits. (Rule 7.9.)
The purpose of a PHC is to facilitate the just and most expeditious disposition of a proceeding. (Rule 7.7.) The panelist who conducts the PHC will not be on the panel hearing the proceeding unless the parties agree that he or she can sit at the hearing. (Rule 7.13 and Form 31.) All discussions at the PHC are confidential. The panelist may canvass the possibility of agreement on some or all of the issues and whether an agreed statement of facts can be prepared. The panelist may give the parties feedback on their positions. Anything that is agreed to will be included in an endorsement that the panelist will prepare after the PHC. Because endorsements are public documents, the endorsement will not contain any confidential information.
Before the PHC, each party will prepare a memorandum that sets out their position. This will be sent to the other parties and to the panelist conducting the PHC and will not be placed in the Tribunal’s file. It is not a public document. (Rule 7.12.)
PHCs are required in all proceedings other than a summary hearing, interlocutory suspension or restriction motion, motion to vary or cancel an interlocutory suspension or restriction or appeal unless the matter is ready for hearing. The parties can also agree to attend a PHC or can be directed to attend by a panelist (e.g. at a proceeding management conference). (Rule 7.9.)
All parties to the proceeding, or their representatives, are required to attend at or participate in the PHC. PHCs are usually scheduled to take place at the Law Society Tribunal’s offices in Toronto. You can request to participate by telephone.
A PHC can cover the:
- identification, limitation or simplification of the issues in the proceeding;
- identification and limitation of evidence and witnesses;
- possibility of settlement of any or all of the issues in the proceeding; and
- possibility of the parties entering into an agreed statement of facts with respect to all or part of the facts in issue in the proceeding.
AGREED STATEMENT OF FACTS (BEFORE OR DURING THE HEARING)
An agreed statement of facts (ASF) is a written document setting out the facts as agreed to between the parties. Either party can prepare an ASF and provide it to the other party to review and respond to.
An ASF is usually completed before the hearing on the merits commences, but may be completed later. The earlier an ASF is completed the better, as an ASF can narrow the issues to be discussed at a hearing and thereby shorten the length of the hearing if the panel accepts the submissions provided by the parties. (Rule 11.1.)
4 – HEARING
Every hearing is open to the public unless there is an order directing otherwise. (Rule 13.2.) The date, time and place of the hearing, along with the notice (without endorsements), are published on the Law Society Tribunal’s website. Any member of the public can attend a hearing. Every oral or electronic hearing is recorded by a reporting service 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. (Rule 9.8(1).) The first party to obtain a transcript must file a copy of it with the Tribunal. (Rule 9.8(2).)
Appearances are usually held in person at the offices of the Law Society Tribunal in Toronto although you can request that an in-person hearing be elsewhere in certain circumstances. (Rule 9.5.) Appearances may be held in English or French (Rule 9.4.) and usually are held orally with the parties, non-party participants, if any, and their representatives, if any, appearing in person. (Rule 9.2.) The Tribunal may direct, at the request of a party or on its own initiative, that an appearance or part of an appearance take place in writing or electronically. (Rule 9.3)
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. The names of the assigned adjudicators and duty counsel, if required and available, are also included. The duty counsel program is administered through The Advocates’ Society. If you do not have a representative, you may be contacted by duty counsel in advance of the hearing to determine whether duty counsel may be of some assistance. You may also consult with duty counsel at the hearing, if they are available and you are self-represented. However, there is no guarantee that duty counsel will be available.
If a witness requires an interpreter, the party calling that witness must advise the Tribunal of that as soon as possible, and at least seven days before the hearing. (Rule 9.4(4).)
The rules of evidence applicable in civil proceedings apply, with some exceptions. (Rule 11.7.) In capacity proceedings, the Law Society presents its case, including calling any witnesses and introducing documentary evidence. You may cross-examine the Law Society’s witnesses. Then you present your case, including calling any witnesses and introducing documentary evidence. The Law Society may cross-examine your witnesses. Witnesses can be summoned. (Rule 11.5.)
5 – PANEL DECISION AND REASONS FOR DECISION, IF ANY
After hearing the merits the panel may:
- make its decision and provide written reasons; or
- reserve its decision.
If the panel reserves its decision, the parties will be advised when the decision is made.
Written reasons are required for the decision and order in a capacity proceeding. (Rule 14.5.)
In either case – if the panel decides right away or reserves – the final decision will be reflected in a formal Order. (Rule 14.4.) The Tribunal will send the parties the Order, and written reasons, by e-mail or fax, or by regular lettermail if the Tribunal has no record of a fax number or e-mail address for the party or the party’s representative.
The Order is published on the Tribunal’s Orders and Reasons webpage and in the Ontario Reports. Any written and oral reasons will be published on the Canadian Legal Information Institute website (CanLII) and QuickLaw.
Note: Costs can be awarded against you if a determination against you is made or where you caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default. Costs can be awarded against the Law Society if the proceeding it commenced was unwarranted or where the Law Society caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default. (Rule 15.1.) The Tariff for the calculation of costs is available at Appendix A of the Tribunal’s Rules of Practice and Procedure.
Costs can be dealt with at the same time that the hearing concludes, or the panel may request submissions from the parties – either at a later hearing date or in writing.
6 – APPEAL
APPEALING THE DECISION AND ORDER – RULE 17
An appeal is commenced by the appellant by serving a notice of appeal and information sheet and filing them together with the confirmation of service form with the Tribunal.
You, or the Law Society, have 30 days after the date of the final Order being appealed from. (Rule 17.2)
A future document will outline the steps in an appeal.