By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created October 31, 2019
The war between the two Tribunals centers around an order for the IRB to produce relevant file evidence to the Law Society for vetting and redaction so that it can determine what is to be disclosed to the parties to a misconduct proceedings. Law Society of Ontario v. Odeleye, 2019 ONLSTH 42 (CanLII), <http://canlii.ca/t/hz48z>
That process is governed by the Common Law process set out by the Supreme Court of Canada in R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411 , 130 D.L.R. (4th) 235 (S.C.C.). If the Tribunal is satisfied that the records are likely relevant, the Tribunal should decide based on the inspection of the records, whether, and to what extent the records should be produced.
Factors to consider in
determining whether to order production include the following:
a) The extent to which the record is necessary for the accused to
make full answer and defence;
b) The probative value of the record in question;
c) The nature and extent of the reasonable expectation of privacy
vested in that record;
d) Whether production of the record would be premised upon any
discriminatory belief or bias, and,
e) The potential prejudice to the complainant’s dignity, privacy
or security of the person.
The Law Society Tribunal ultimately agreed with the Lawyer "that the IRB should produce to us complete copies of the records the IRB has already produced in part."
The IRB refused to cooperate and comply with the Tribunal's order and did not sought judicial review of the decision. It then remained silent in the face of the Tribunal's order:
The IRB refused to cooperate and comply with the Tribunal's order and did not sought judicial review of the decision. It then remained silent in the face of the Tribunal's order:
"The tenor of Ms. Jennifer Harnum’s submissions and the animus that the IRB has shown for our adjudicative processes and procedures are concerning.... The IRB’s contempt for our process is surprising, coming as it does from a federal administrative tribunal that has the same or similar obligations of procedural fairness as we have. The IRB’s conduct has been as baffling to us as it has been frustrating" wrote Law Society Adjudicator Thomas G. Conway.
'In our view, the IRB’s breach of our order will have a serious deleterious effect on the fairness of the adjudication of this application if the breach is not remedied."
Adjudicator Conway concluded " For the reasons stated, we have concluded on the facts of this case that we should exercise our discretion under s. 13(1) of the SPPA by asking the Divisional Court to inquire into whether the IRB is in contempt of our orders for production of records."
I agree with the steps taken by the Law Society Tribunal in this case. Its orders must be complied with and it is remarkable and significant that a Federal Tribunal sought to ignore or otherwise not comply with the orders to produce relevant documents required to ensure that the public interest is protected. After all the Tribunal has to determine in this case whether or not the lawyer misconducted himself in three refugee proceedings. It would be an injustice to the parties if relevant evidence held by a third party is not produced.
