Dioguardi Tax Law v. The Law Society of Upper Canada

Dioguardi Tax Law v. The Law Society of Upper Canada Collection Decisions of the Court of Appeal Date 2016-07-05 Neutral citation 2016 ONCA 531 Docket numbers C60739 Judges MacPherson, James C.; Simmons, Janet M.; Lauwers, Peter D. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Dioguardi Tax Law v. The Law Society of Upper Canada, 2016 ONCA 531 DATE: 20160705 DOCKET: C60739 MacPherson, Simmons and Lauwers JJ.A. BETWEEN Dioguardi Tax Law, Philippe Joseph Mario Dioguardi and Paul Dioguardi Applicants/Appellants on Appeal and The Law Society of Upper Canada and The Attorney General of Ontario Respondent/Respondents on Appeal APPLICATION UNDER Rule 14.05(3)(a), (b), (d), (g), and (h) of the Rules of Civil Procedure Melvyn L. Solman and Matthew Valitutti, for the applicants Glen M. Stuart, for the respondent, The Law Society of Upper Canada Sean Hanley and Hayley Pitcher, for the respondent, Attorney General for Ontario Heard: June 29, 2016 On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated June 9, 2015. ENDORSEMENT [1] The appellant lawyers and law firm appeal the judgment of Belobaba J. of the Superior Court of Justice dated June 9, 2015 dismissing the appellants’ application for (1) an order protecting the confidentiality of solicitor-client privileged information of its clients who have lodged complaints against them; (2) an order declaring that the legislative scheme in the Law Society Act, R.S.O., 1990, c.L.8, related to the Law Society of Upper Canada’s investigation powers violated the Charter ss. 7 and 8 rights of these clients/complainants; and (3) an order granting the appellants public interest standing to make the Charter arguments on behalf of all clients/complainants in Ontario, if necessary. [2] The application judge determined that the application was premature: [1] Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed or until the available effective remedies are exhausted. ... [14] In short, there is every good reason to allow the administrative process in this case to run its course. The Law Society Tribunal should be allowed to decide at first instance whether the constitutional arguments advanced herein are well-founded and, in particular whether there is any room in the legislative design and policy of the Act for the specific client-focused protections being sought by the applicants. The Law Society Tribunal has the expertise and the experience to consider the applicants’ submissions and proposed reforms and make the required determinations at first instance. And the court (should the matter get to court) would benefit greatly from this expert tribunal’s reasons and decision. [3] The appellants raise the same issues on this appeal that they advanced on the application. At the appeal hearing, we called on the parties to address the issue of prematurity. [4] Our conclusion on this issue is simple: we agree with the application judge’s conclusion and with his reasons in support of the conclusion. [5] Since the application judge’s decision was released, the Supreme Court of Canada rendered decisions in Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, and Canada (National Revenue) v. Thompson, 2016 SCC 21. [6] The appellants were granted leave to file a supplementary factum after these decisions were released. In their factum, the appellants assert that in Thompson the Supreme Court has articulated a clear directive to the courts to “facilitate” (para. 39) the requirement to ensure that the client is given the opportunity to protect his or her own solicitor-client privilege and that, therefore, an application direct to the superior court is the proper route for raising this issue. [7] We disagree. There is nothing in Thompson or Chambre des Notaires to suggest that the superior court (and this court) should determine the merits of their Charter challenge and obtain a remedy before exhausting their administrative remedies. The application judge was correct to follow the decisions in Volochay v. College of Massage Therapists of Ontario, (2012) 111 O.R. (3d) 561 (C.A.), at paras. 68-71, and C.B. Powell Ltd. v. Canada, [2010] F.C.J. No. 274 (C.A.), at para. 32, on this issue. [8] The appellants also seek leave to appeal the application judge’s costs awards of $20,000 to the Law Society of Upper Canada and $30,000 to the Attorney General of Ontario. [9] We see no reason to interfere with these awards, especially against the backdrop of the appellants’ bill of costs of $100,000 for the application. [10] The appeal is dismissed. The respondents Law Society of Upper Canada and Attorney General of Ontario are entitled to their costs of the appeal fixed at $12,500 and $7,500 respectively inclusive of disbursements and HST. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “P. Lauwers J.A.”