Wednesday, January 6, 2016

Divisional Court on Abuse of Process Standard of Review

Admissibility and proper use of reasons of a court

[122]   Dealing with the use which reasons of a court may be put in a disciplinary proceeding of the type involved here, I agree with the Appeal Panel that the Hearing Panel erred in seemingly considering the reasons to be irrefutable regarding the issue that was before them for determination.  I reject, as the Appeal Panel did, the conclusion that the Hearing Panel reached, as set out at para 96 of its reasons:

While the panel is not bound by those findings, to permit their re-litigation in the circumstances would, in our opinion, amount to an abuse of process.  The panel therefore concludes that the reasons for decision of the  Superior Court and the Court of Appeal are admissible and can be considered as evidence of misconduct.

[123]   I will say, on this point, that the interpretation and application of the doctrine of abuse of process raises a question of law of central importance to the legal system falling outside the expertise of the Panels and, thus, the appropriate standard of review is correctness, both for the decision of the Hearing Panel and the decision of the Appeal Panel.  The respondent (cross-appellant) agrees that this is the proper standard of review.

Groia   v.  Law Society of Upper Canada 2015 ONSC 686 (Canli) at p.25

NOTE:  A motion alleging an abuse of process is one of the most serious motions any lawyer may ever have to bring - with the exception of a motion asserting a reasonable apprehension of bias. When a lawyer, asserts any of these motions in good faith, and is the subject of a complaint to any regulatory agency at the hands of a tribunal, this a a matter of public concern. These motion are always in the public interest unless it can be shown than the motion ought not to have been brought at all.

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