Anton Oleynik Appellant And: Law Society of Newfoundland v. Labrador, 2022 NLSC 151

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Law Society of Newfoundland and Labrador , 2022 NLSC 151 Date : October 21, 2022 Docket : 202101G6424 Between: Anton Oleynik Appellant And: Law Society of Newfoundland and Labrador Respondent Before: Justice Glen L.C. Noel On Appeal From: A Decision of the Complaints Authorization Committee pursuant to the Law Society Act, 1999 , S.N.L. 1999, c. L-9.1, s. 45(7) , File # 2020-062, dated the 17th day of November 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 13, 2022

Summary: Anton Oleynik appealed the decision of the Complaints Authorization Committee of the Law Society of Newfoundland and Labrador to dismiss allegations against a Law Society member. The allegations arose from Oleynik’s ongoing litigation with the member’s client.

Oleynik raised three preliminary issues and four grounds of appeal: two concerning procedural unfairness and two relating to theCommittee’s substantive determination of the allegations. The Court held: 1. The Court has inherent jurisdiction to make the Case Management Order without first hearing from the parties. 2. Oleynik has not established that a reasonable apprehension of bias exists requiring my disqualification and recusal. 3. The Record as filed by the Law Society is complete, and no additional evidence is permitted. 4.

The Law Society properly followed its own rules and procedures in dealing with Oleynik’s allegations. 5. The Law Society identified and properly managed the conflict of interest with a member of its Executive Committee. 6. On the reasonableness standard of review, the Committee’s reasoning reflects it adequately considered the allegation of alteration ofcourt records, and no further investigation was necessary. 7. The Committee’s decision reflects it considered the extensive evidence presented, and there is no reasonable basis to set aside thedetermination to dismiss all the allegations.

The Court dismissed the appeal and provided reasons for awarding costs to the Law Society on Column 4. Appearances: Anton Oleynik Appearing on his own behalf Aimee N. Rowe Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Wewaykum Indian Band v. Canada, 2003 SCC 45; Brooks v. Law Society of New Brunswick, 2015 NBCA 18;Cabana v. Newfoundland and Labrador, 2014 NLCA 34; Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2016 ONCA 60;Patrick Street Holdings Ltd. v. 11368 NL Inc., 2021 NLSC 29; Fogal v. Canada, (FC), 164 F.T.R. 99, 30 C.P.C. (4th)13 (Fed.

Ct.); Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Aylward v. Law Society of Newfoundland andLabrador, 2013 NLCA 68; Martin v. The Law Society (Newfoundland and Labrador), 2010 NLTD(G) 186; Hosseini v. College ofDental Surgeons of Saskatchewan, 2022 SKQB 13; Strom v. Saskatchewan Registered Nurses’ Association, 2020 SKCA 112; Eimskip,USA, Icelandic Steamship Inc. v. Nordica Foods A/S, 2015 NLCA 17; Bussiere v. Grain Services Union, (SK KB),[1999] 2 W.W.R. 171, 46 C.L.R.B.R. (2d) 293 (K.B.); Harris v. Law Society (Newfoundland and Labrador), 2019 NLSC 196; Connollyv.

Law Society (Newfoundland and Labrador), 2011 NLTD(G) 152; Social Workers & Social Services Workers (Ontario), (ON SCDC), 145 A.C.W.S. (3d) 351, 264 D.L.R. (4th) 175 (Ont. Sup. Ct. (D.C.)); Buckingham v. Law Society of Newfoundlandand Labrador, 2022 NLSC 37 (Currently under appeal, Law Society of Newfoundland and Labrador v Buckingham, 2022 NLCA 56) STATUTES CONSIDERED: Access to Information and Protection Act, S.N.L. 2015, c. A-1.2; Management of Information Act, S.N.L.2005, c. M-1.01; Law Society Act, 1999, S.N.L. 1999, c. L-9.1; Judicature Act, R.S.N.L. 1990, c.

J-4; Newfoundland and LabradorRegulation 33/22 RULES CONSIDERED: Rules of the Supreme Court. 1986, S.N.L. 1986, c. 42, Sch. D

TEXTS CONSIDERED: Canadian Judicial Counsel, Ethical Principles for Judges (2021), online: Canadian Judicial Council <http://www.cjc-ccm.ca> REASONS FOR JUDGMENT Noel, J. : INTRODUCTION [ 1 ] This is a statutory appeal by Anton Oleynik from the decision of the Complaints Authorization Committee (“Committee” or “CAC”) of the Law Society of Newfoundland and Labrador (Law Society) dismissing his allegations against a Law Society member. The allegations arise from Oleynik’s ongoing litigation with the member’s client.

BACKGROUND [ 2 ] Oleynik is involved in a multiplicity of legal proceedings before this Court with his employer, Memorial University of Newfoundland (“Memorial” or “MUN”). The proceedings concern the Access to Information and Protection Act , S.N.L. 2015, c. A-1.2 and the Management of Information Act , S.N.L. 2005, c. M-1.01 . [ 3 ] I have been assigned by the Chief Justice as the case management judge to manage and oversee the proceedings. [ 4 ] Stewart McKelvey is the law firm representing Memorial in the proceedings.

Koren Thomson of that firm is the lead counsel of record acting on behalf of Memorial. [ 5 ] On December 21, 2020, February 11, 2021, and March 30, 2022, Oleynik wrote to the Law Society with his allegations and detailed submissions, including reference to attached exhibits. [ 6 ] The specific allegations were that Ms. Thomson: i. Failed to act in good faith with him; ii. Misled the Court by providing a false explanation of how the metadata and contents of the two emails produced for inspection and copying had been altered; iii.

Repeated the false explanation in her client’s Brief and knowingly asserted as true a fact when its truth cannot reasonably be supported by the evidence; iv. Misled the Court with respect to his request for leave to conduct interrogatories and improperly submitted her own affidavit evidence before a Court which was incomplete and/or contained invalid information; v.

When trying to access the sound recording of the case management meeting of November 16, 2020, provided the Registry of the Court with invalid information claiming that the Court had intention of making the recordings of case management meetings available to the parties without ex parte applications, as required; vi. Provided her client with incorrect information in mid-September 2020 claiming that there was an Order or direction of the case management judge in respect to service of documents; vii.

Complained to his employer, MUN, alleging that filing a complaint amounts to vexatious behaviour, which has resulted in his employer stating its intention to dismiss him “ for cause ’ as a result; viii. Attempted to deceive a tribunal or influence the course of justice by offering false evidence; and ix. Knowingly asserted something as true a fact when its truth cannot be reasonably supported by evidence. [ 7 ] The Committee considered the information and documentation and opined that there were no reasonable grounds to believe Ms.

Thomson had engaged in conduct deserving of sanction and dismissed the allegations. The Committee gave notice of the dismissal to Oleynik and Ms. Thomson in accordance with s. 45(2) of the Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 (the “ Act ”). In the notice to Oleynik on November 17, 2021, the Director of Professional Responsibility for the Law Society provided Oleynik with reasons for the Committee’s dismissal of the allegations, (“the decision”) attached hereto as

Schedule “A”. [ 8 ] Oleynik filed his detailed 12-page Notice of Appeal the day following receipt of the decision. [ 9 ] Oleynik’s allegations against Ms. Thomson, addressed in the Committee’s dismissal, was not the first time Oleynik had complained to the Law Society about Ms. Thomson’s conduct. In October 2018, Oleynik filed an allegation, Law Society file number C18-048. He alleged Ms. Thomson was “deliberately postponing procedural steps to gain time for torpedoing the legal proceedings commenced against her client by administrative and disciplinary means” (at para. 11, Oleynik’s Brief filed March 3, 2022).

The Complaints Authorization Committee dismissed the allegation. Oleynik did not appeal the dismissal of his prior allegation against

Ms. Thomson. ISSUES [ 10 ] Oleynik raises three preliminary issues (“Issues 1 – 3”) and four substantive issues (“Issues 4 -7”) in his appeal: Issue 1 – Should a Case Management Order have been made without first hearing from the parties? Issue 2 – Has Oleynik established grounds for my recusal from hearing the appeal? Issue 3 - Is the Record incomplete; and is it necessary to admit new evidence? Issue 4 – Did the Law Society follow its own rules and procedures when dealing with the allegations? Issue 5 – Did the Law Society fail to identify and manage a conflict of interest situation?

Issue 6 – Did the Law Society fail to investigate the allegation of alteration of court records? Issue 7 – Did the Law Society fail to consider all evidence produced by Oleynik in support of his allegations? [ 11 ] I will first deal with the preliminary Issues 1 - 3, and then the standard of review that applies to Issues 4 – 7. Issue 1 – Should a Case Management Order have been made without first hearing from the parties? [ 12 ] A Case Management Order was filed on November 19, 2022. [ 13 ] Oleynik submits the Rules of the Supreme Court. 1986 , S.N.L. 1986, c. 42, Sch.

D (the “ Rules ”), in existence at the time the Case Management Order was made, provided for two procedures for initiating case management: upon application from a party “following the close of pleadings” or on a judge’s “own motion after hearing from the parties ” [emphasis added]: Rule 18A.03. Neither party applied nor did the Court hear from the parties before making the Case Management Order. [ 14 ] The Case Management Order was endorsed on behalf of the Chief Justice by Justice Marshall acting as the next senior judge of the Court in the place of the Chief Justice: s. 49 of Judicature Act , R.S.N.L. 1990, c.

J-4 .

The Order stipulated that it was, pursuant to Rule 18A.01(b) “to give direction as to the procedure to govern the future course of the proceeding and, in particular, that the proceeding would benefit from continuous case management by the same judge.” I was designated to act as the Case Management Judge, and Chief Justice Whalen as the Alternate Case Management Judge in the event of my inability to act. [ 15 ] Oleynik received the Case Management Order on November 25, 2021, and the next day wrote to Justice Marshall requesting an opportunity to make submissions to Justice Marshall on the Case Management Order. [ 16 ] A case management meeting occurred on December 8, 2021, and Oleynik continued to insist that he appear before Justice Marshall who endorsed the Case Management Order.

I explained that notwithstanding the Rules of the Supreme Court and any failure of strict compliance, the Court has inherent jurisdiction to control its own processes, including by way of case management: s. 3 of Judicature Act . [ 17 ] On April 29, 2022, I held a Case Management Meeting. Oleynik sought directions on the issue of the Case Management Order, the Record prepared by the Law Society, and my recusal from this matter.

I set the hearing date and filing dates and advised I would deal with Oleynik’s preliminary issues as part of the submissions on the appeal proper. [ 18 ] I acknowledge that Oleynik recognized and pointed out that the Case Management Order did not strictly accord with the wording of the case management rule existing at the time the Order was made. Rule 18[A].03(3) has since been amended by deleting the words “after hearing from the parties,” and a judge can issue a case management order on that judge’s own motion.

The amended rules, among other changes, came into force on July 4, 2022: Judicature Act , Newfoundland and Labrador Regulation 33/22 .

Although the Case Management Order was made before the amendment, the Court always had the power to amend, modify, or rescind a case management order as the circumstances require: Rule 18A.03(10). [ 19 ] Oleynik took full advantage of the case management process to raise and discuss preliminary issues that ultimately facilitated the hearing proceeding as scheduled without unnecessary interlocutory applications and delays. [ 20 ] The Court has inherent jurisdiction to make the Case Management Order without first hearing from the parties.

Issue 2 – Has Oleynik established grounds for my recusal from hearing the appeal? [ 21 ] The burden is Oleynik’s, as the party arguing for disqualification of the judge, “to establish that the circumstances justify a finding that the judge must be disqualified”: ( Wewaykum Indian Band v. Canada , 2003 SCC 45 , at para. 59 ). [ 22 ] I did not require Oleynik to make a separate and formal application on his request for my recusal.

Oleynik, in his written Brief, stated, “In the Appellant’s opinion, there is no compelling need to have a separate hearing of this preliminary issue.” I am satisfied he has appropriately raised the issue, and I have the ability to decide the issue on the material he filed and submissions made. [ 23 ] Oleynik asserts two grounds for the recusal request: (

i) an informed and fair-minded observer would have a reasonable apprehension of bias for Noel J to review his own decisions or the actions of his Judicial Assistant with respect to the allegations (v), (vi), and (viii); and (ii) Noel, J maintains close connections with the Law Society as a Past President, former Chair of the Discipline Panel, and Honorary Bencher.

[ 24 ] A fundamental foundation of our legal system is an independent and impartial judiciary. Oleynik is entitled to the confidence that I will decide independently and free of extraneous influence. The Canadian Judicial Counsel, Ethical Principles for Judges (2021), online: Canadian Judicial Council <http://www.cjc-ccm.ca> states: “Judicial independence ensures that judges are impartial in fact, and also that they are perceived to be so.” [ 25 ] The Supreme Court of Canada has enunciated the legal test for judicial recusal or removal for bias.

The question is: would an informed person - viewing the matter realistically and practically, and having thought the matter through – think that it is more likely than not that I, whether consciously or unconsciously, could not decide the appeal fairly: ( Wewaykum Indian Band v. Canada , at para. 74 ). Oleynik is not required to show actual bias on the part of the judge, but the reasonable apprehension of bias is sufficient to meet the test for disqualification. Reasonable apprehension of bias is therefore an objective standard: Brooks v. Law Society of New Brunswick , 2015 NBCA 18 , at para. 8 ; Cabana v.

Newfoundland and Labrador , 2014 NLCA 34 (at para. 19 ); Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC , 2016 ONCA 60 (at para. 47 ). [ 26 ] There is a strong presumption of judicial impartiality. The grounds for apprehension of bias to rebut the presumption of impartiality must therefore be “serious” and “substantial”: Wewaykum , at para. 76. [ 27 ] The inquiry is highly fact-specific and contextual: ( Wewaykum , at para. 77). I must apply the facts, on which Oleynik seeks my disqualification, to the governing legal standard.

(1) First Ground for Seeking Disqualification [ 28 ] An examination of the full particulars of the first ground for the recusal reveals no justification for disqualification. Oleynik’s assertion is that the Committee relied on prior findings that I made in proceedings before the Court, and that I have no power to review my own decisions or the conduct of my Judicial Assistant. [ 29 ] The Committee’s conclusion on this allegation rested on the explanation in email exchanges between Oleynik and the responsible senior management Court official.

The Assistant Deputy Registrar (ADR) advised Oleynik that: Justice Noel had granted consent “on the record” during the Case Management Meeting that all parties on the within actions are permitted to request audio recordings of the Case Management Meetings. All parties agreed.

It was also agreed an Interlocutory Application was not necessary, given this permission “on the record.” It was discussed among counsel at that time, the parties’ consent on the applicant/requester committing to use the audio for the sole purposes of the proceeding, and not for any other form of distribution / sharing / broadcasting and such. [ 30 ] Oleynik challenges whether the case management meeting sound recording accurately reflects what the ADR stated in her email to him. Ms.

Thomson in her correspondence dated May 5, 2021, and response to the allegations of Oleynik stated, “I have no recollection of making any statements to the Registry such as the one alleged.” Whether what was stated in the email explanation was a verbatim reflection of the sound recording is immaterial to the Committee’s acceptance of the Court official’s statement to Oleynik, and the Committee’s acceptance of Ms. Thomson’s statement that she had not misled the Registry staff. [ 31 ] Furthermore, the ADR would have sought directions from me before responding to Oleynik’s email inquiry.

Her email in reply to Oleynik reflects the directions I provided. [ 32 ] Oleynik’s persistence with this issue of access to the sound recordings did not end there. The Record indicates he was not satisfied with the explanation and went up the chain of command to the Registrar. The Registrar emailed him: I acknowledge receipt of your email and wish to advise that I have reviewed the matter. It has come to my attention that there may have been some confusion regarding the Court’s intention of making the recordings available to the parties in your proceedings.

I have confirmed with Justice Noel that it was his intention to allow parties to have access to the case management meeting recordings without the requirement of an application as outlined in our Guide to Accessing Court Proceedings and Records. [ 33 ] The Registrar advised Oleynik the administrative staff were instructed to issue him a refund for the ex parte application he had paid to access the sound recording. [ 34 ] There is nothing that requires me to review my own order or decision.

Giving directions to a Court official on a request for sound recordings of a case management meeting is not an order or decision that resulted from my adjudication of an issue in dispute.

I was simply clarifying for the Court officials and the parties that an ex parte application going forward would not be required in accessing sound recordings. [ 35 ] This is unlike the situation facing Handrigan J in Patrick Street Holdings Ltd. v. 11368 NL Inc. , 2021 NLSC 29 , at para. 54 , where Handrigan J recused himself because he had on two previous occasions decided on the central issue in dispute between the parties, that being “the efficacy of the collateral mortgage.” He felt “constrained by two precedents of [his] own making.” He agreed with Patrick Street Holdings (at para. 55), “that there may be a reasonable suspicion that I will not have an open and impartial mind” to hear further interlocutory applications involving the collateral mortgage. [ 36 ] The Committee’s dismissal of allegations (vi) and (viii) similarly does not necessitate me reviewing the merits of my own orders or decisions.

On allegation (vi), the Committee concluded, “While the Committee noted that direction was provided at Case Management with respect to service, a party does not need an Order to serve another party.” Respecting allegation (viii), the Committee dismissed the allegations on acceptance of Ms. Thomson’s explanation and review of the Record. The Record included emails from my Judicial Assistant, reflecting how a draft Sealing Order that the Court had issued in error was quickly corrected, after Oleynik brought the error to the Court’s attention, to reflect the proper version of the Order as agreed upon by the parties.

[37] Oleynik, in his written submissions, impugned the conduct of my Judicial Assistance. He demanded disclosure of all emailexchanges my Judicial Assistant had with Ms. Thomson. I determined the Record already included all pertinent exchanges, and therewas no validity to his request or his accusation of being denied procedural fairness. [38] When pressed at the hearing to clarify what it was that my Judicial Assistant did that was improper, Oleynik recanted that itwas not what she did but what Ms. Thomson did.

Impugning the conduct of any judicial official is a serious attack on the integrity of theadministration of justice. The Court cannot ignore Oleynik’s conduct in this regard, and I will deal with sanctioning that conduct whenspeaking to costs.

(2) Second Ground for Recusal Request [39] Oleynik’s second ground for recusal is also without justification. [40] Oleynik claims I maintain a close connection with the Law Society as Past-President in 2010, Chairperson of the DisciplinePanel up to my appointment to the Court in May 2019, and that I am a “current Honorary Bencher.” [41] I pointed out to Oleynik at the hearing that when a member of the Law Society is appointed to the judiciary, they cease being amember of the Society.

Section 31 of the Act states, “where a member becomes a judge, his or her name shall be struck off the roll byentering a memorandum of that fact on the roll.” The Law Society Brief in Response to Recusal Application takes the position that NoelJ “is no longer an honorary bencher.” [42] Oleynik seized the opportunity to raise a legitimate concern.

His Affidavit filed on March 3, 2022, attaches Exhibits of theLaw Society Annual Reports for 2019-2020 and 2020-2021 that show I am under the listing with other current sitting judges as“Honorary Benchers.” [43] The governing body of the Law Society is the benchers (s. 6 of the Act). The benchers include honorary benchers: s. 7(1)(c). Honorary benchers “are former treasurers or presidents of the society who are members in good standing” (at s. 7(3)). [44] Since judges are “struck off the roll” by statutory

interpretation they cannot be “members in good standing” and honorarybenchers. Without directing the Law Society as a self-governing body, it would be advisable for the Law Society to consider resolving infuture annual reports or other publications any confusion or public perception that is created by styling and listing current members of thejudiciary, who are “former treasurers or presidents of the society,” as “Honorary Benchers.” [45] The concept expressed in s. 4 of the Act, that “[t]he judges of the Supreme Court continue to be visitors of the society,” requiresexplanation.

The Newfoundland and Labrador Court of Appeal explained the concept of a “visitor” to a public institution relates to therole the judiciary plays in “independent supervision” of the institution: R. v. Taylor, 2013 NLCA 42, at para. 31. The concept is entirelyconsistent with the independence of judges from the Law Society. [46] I still need to consider the reasonable apprehension of bias that may arise from my past association and close connection withthe Law Society and its governance, particularly my role as Chairperson of the Discipline Panel immediately up to the time of myappointment.

The Chairperson of the Discipline Panel is responsible for appointing “an adjudication tribunal” after the referral of“complaints” to the Discipline Panel: s. 46(1). [47] All of the allegations relate to matters dating and occurring after my appointment. I could not have any knowledge orinvolvement with Oleynik’s allegations during my time as a Bencher or Honorary Bencher.

Oleynik’s concern is nevertheless that Iwould have an interest in protecting the reputation of the Law Society and its members, or reasonably perceived to have such interest. [48] Once lawyers are appointed to the Bench, they must sever their ties with the Law Society, former law firms, and clients. I havehad no association with the Law Society for over three years since my appointment to the Bench.

I have made no contact with the LawSociety concerning Oleynik’s allegations, or interfered in any way with the Law Society’s handling of his allegations. [49] Judges come from various fields of activities and experience. Justice Dubé, in Fogal v. Canada, (FC), 164F.T.R. 99, 30 C.P.C. (4th) 13 (Fed. Ct.), at para. 10, put it most succinctly: The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, wedivorced ourselves from our past and dedicated ourselves to our new vocation.

Our duty is to render justice without fear or favours. [50] In applying the objective standard test, I am not satisfied a reasonable apprehension of bias exists requiring my recusal. Mypast association with the Law Society has been clearly identified.

An informed person – viewing the matter realistically and practically,and having thought the matter through – would conclude that I am able to decide Oleynik’s appeal fairly. [51] My Judicial Oath of Office requires no less of me, and that is to “…do right to all manner of people, after the laws and usagesof the Province, without fear or favour, affection or ill-will.” I fully intend to fulfill the Judicial Oath I have sworn and carry out theresponsibilities required of me.

Issue 3 - Is the Record incomplete, and is it necessary to admit new evidence? [52] The Record that the Law Society filed is voluminous consisting of 877 pages in total. The Record is complete, and theCommittee had before it all necessary and material documents to consider the allegations. [53] Oleynik takes issue with the Record. He claims the Record contains unauthenticated documents, incomplete and/or damageddocuments, and omissions. In addition, Oleynik seeks to admit new evidence. Authenticated Record

[ 54 ] Oleynik submits that: (

i) the record must be authenticated as evidence; and (ii) the documents should be provided in “native format.” The Law Society has complied with Rule 58.09 and Form 58.09A of the Rules of the Supreme Court for civil appeals in filing a copy of the record of the proceedings before the decision-making authority. Record Completeness [ 55 ] On February 2, 2022, Oleynik served a Notice of Inspection on the Law Society seeking access to 17 digital records, copies of which are included in the Record. [ 56 ] In accordance with Rule 32.05(2), the Law Society responded to the Notice of Inspection with the following objections: (

i) a Notice of Inspection is not applicable to civil appeals; and (ii) the Law Society complied with the civil appeal rules relating to the Record. [ 57 ] Oleynik maintains he submitted documents to the Law Society that the Law Society omitted from the Record. He refers (at paras. 93 and 104, Brief of March 3, 2022) to various email exchanges with the Law Society or other documents that the Law Society should have generated and included. [ 58 ] There are no omissions in the Record, and all “relevant documents in the decision-making authority’s possession” are contained in the Record: Rule 58.09(2)(e).

Admission of New Evidence [ 59 ] Oleynik seeks the admission of “new evidence” as detailed in his submissions (at para. 105, March 3, 2022 Brief), and “newly discovered evidence” (at para. 44, August 10, 2022 Brief). [ 60 ] The index of “new evidence” that Oleynik seeks to admit includes: 1. List of staff members of MUN’s Office of the General Counsel. 2. CAC Determination with respect to the allegation file number C18-048. 3. Memorandum addressed to MUN’s Provost and Vice-President (Academic). 4. Grievance I-21-02 filed by MUNFA on the Appellant’s behalf. 5.

Media report titled “MUN bans student from campus, accuses him of harassing university president.” 6. Administrative letter to Justice Marshall. (Oleynik’s administrative letter to Justice Marshall, as previously referred to, is not new evidence as it is contained within the subject Court file.) 7. Correspondence with legal counsel. 8. Material from the Aylward v. The Law Society of Newfoundland and Labrador case (court dockets 201601G3619 and 201701H0088). 9. Excerpts from Mr. Worsfold’s affidavit (court docket number 202101G4960). 10. Exchange with the Labour Relations Board of Newfoundland and Labrador. 11.

Excerpts from the transcript of the hearing of October 14, 2021. 12. Ms. Thomson’s correspondence to Ms. Rosemary Thorne (Smith).

13. Excerpts from MUN’s compensation disclosure. 14. Exchange with legal counsel for MUN. 15. Order of Noel J granting leave to access a copy of the sound recording of the case management meeting of November 15, 2020. 16. Excerpts from the transcript of the hearing of March 5, 2021. 17. Metadata of the pdf version of the Judgment in Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 4 , distributed by the Society’s Library to subscribers in January 2021. [ 61 ] The pieces of “newly discovered evidence” Oleynik seeks to introduce are: 1.

Changes in the governance of the Law Society and in membership lists for its Complaints Authorization Committee and Disciplinary Panel; 2. Exchange with the Judicial Assistant to Noel J with respect to sharing submissions with the other parties; 3. Originating documents in 202201G0257 and 202201H0003; 4.

Notice to profession and general public: Upcoming rule amendments (This is not evidence, but subordinate legislation that Oleynik is entitled to refer to.); 5. 2021 edition of Canadian Judicial Council’s Ethical Principles for Judges (This is a public accessible publication that Oleynik is entitled to rely on.); 6. The 2018 news item ‘KUDOS! Four law school alumni in the newest QCs announced for Newfoundland and Labrador’; and 7. Copy of the Law Society’s response to Ms. Al-Haidari’s complaint. [ 62 ] Rule 58.16 permits a judge hearing an appeal to order the introduction of additional evidence on the appeal.

I did not require Oleynik to make an interlocutory application, and he has complied in substance with the supporting affidavit requirements of Rule 58.16(3). [ 63 ] Rule 58.16 (4) sets out the considerations for permitting the admission of additional evidence: (

a) Whether, by due diligence, the evidence could have been tendered in the proceeding appealed from; (

b) The relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal; (

c) The reliability of the evidence; (

d) Whether the evidence, if believed, could reasonably have affected the result; and (

e) Any other relevant factor. [ 64 ] I am not admitting the “new evidence” because:

i. Most of the evidence could have been tendered before the Committee; ii. Evidence Oleynik is seeking to introduce is not relevant to the substance of the appeal as it relates either to: a. Previous matters before the CAC (items b and h in paragraph 105 of Oleynik’s Brief); b. Third party processes external to the CAC, including MUN, MUNFA, the Court, and the Labour Relations Board (items a, c, d, e, f, i, j,k, l, m, n, o, p, and q in paragraph 105 of the Oleynik’s Brief); and c.

Communications between counsel and Oleynik relating to the record (which have been addressed as preliminary matters) (item g in paragraph 105 of the Oleynik’s brief). iii. The reliability of the evidence is unclear as much of the evidence would be context-specific requiring a review of more than the individual record proposed to be admitted (i.e., chains of correspondence); iv. The evidence would not reasonably have affected the decision. [ 65 ] Similarly, the purported “newly discovered evidence” has no bearing on nor relevance to the appeal issues.

STANDARD OF REVIEW [ 66 ] Turning to the substantive issues, I must determine the applicable standard of review that applies. [ 67 ] Under s. 45(7) of the Act , a complainant has a statutory right to appeal a decision of the CAC to dismiss an allegation. As a result, appellate standards of review apply to the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at para. 37 . [ 68 ] Oleynik raises breaches of procedural fairness by the Law Society in Issues 4 and 5.

I do not accept the Law Society’s position that Issues 4 and 5 should proceed by way of application for judicial review with a standard of reasonableness. [ 69 ] When I read sections 44 and 45 of the Act together and purposively, it is apparent that the Vice-President plays an integral role in effecting the referral of allegations to the CAC. The Vice-President may “conduct an investigation” under subsection 44(1.1), and the CAC may refer allegations back to the Vice-President for an investigation or further investigation: s. 41(1)(a)(i)(ii).

Requiring Oleynik to make a separate application for judicial review of the Law Society’s alleged improper procedural conduct of his allegations is unwarranted, and too narrow a reading of the right of statutory appeal under section 47(7) for the Committee’s dismissal of his allegations. [ 70 ] The Newfoundland and Labrador Court of Appeal has decided where a party alleges breaches of procedural fairness, the Court need not engage in assessment of the appropriate standard of review.

If the Committee (or more generally, the Law Society) “failed to accord appropriate procedural safeguards” to Oleynik, the decision must be set aside: Aylward v. Law Society of Newfoundland and Labrador , 2013 NLCA 68 , at para. 19 . [ 71 ] The remaining two issues, Issues 6 and 7, concern how the Committee investigated the allegation of alteration of court records and assessed the evidence in support of Oleynik’s other allegations. The jurisprudence establishes that the standard of review applicable to a decision of the Committee is reasonableness: Aylward , at paras. 22 and 23 .

On these two issues, Oleynik agrees that the standard is reasonableness. [ 72 ] The role of the Committee is to reach an informed opinion on whether reasonable grounds exist to believe that the member has engaged in conduct deserving of sanction: s. 45(2) . The Committee considers the factual circumstances of the allegations and assesses those circumstances against the standard of conduct of the profession: Martin v.

The Law Society (Newfoundland and Labrador) , 2010 NLTD(G) 186, at paras. 20 and 39. [ 73 ] The case law authorities submitted by counsel for the Law Society on the applicable appellate standard of review are distinguishable. The authorities from Saskatchewan concern appeals from tribunal decisions. The tribunals made factual findings after discipline committee hearings had occurred (as opposed to a screening committee determination without a hearing). A tribunal’s factual findings are reviewable under the standard of palpable and overriding error.

The NL Court of appeal authority involves the standard of review for an appeal of a lower court’s discretionary decision: Hosseini v. College of Dental Surgeons of Saskatchewan , 2022 SKQB 13 ; Strom v. Saskatchewan Registered Nurses’ Association , 2020 SKCA 112 ; and Eimskip, USA, Icelandic Steamship Inc. v. Nordica Foods A/S , 2015 NLCA 17 , at para. 29 . [ 74 ] This is not an appeal under s. 55.2(1) of the Act from a decision of “an adjudication tribunal,” which hears a complaint that has been referred under s. 45(3)(b).

The appeal does not concern the standard of review applicable to an adjudication tribunal decision. [ 75 ] The Committee did not hear from witnesses or make credibility determinations in its assessment of the evidence. Accordingly, the post- Vavilov appellate standard of palpable and overriding error does not apply to the Committee’s decision on its assessment of evidence and the application of the evidence to the professional standard of conduct. [ 76 ] The standard or review on Issues 6 and 7 is therefore reasonableness.

Issue 4 – Did the Law Society follow its own rules and procedures when dealing with the allegations?

[ 77 ] Oleynik contends that:

a) The Law Society summarily dismissed and improperly disclosed his written submissions of December 18, 2021;

b) There was no attempt to refer the allegation to alternate dispute resolution;

c) The Vice-President did not prepare a report and did not refer all allegations to the CAC;

d) The Law Society granted unnecessary extensions and caused delays.

a) Summary Dismissal and Disclosure to Member [ 78 ] Oleynik asserts that the legislature did not provide the Vice-President with the option of summarily dismissing an allegation and that Rule 9.02 of the Law Society Rules cannot provide that authority. [ 79 ] “Allegation” is defined in the Act to mean, “a written document alleging that a person has engaged in conduct deserving of sanction”: s. 41 (a). “Conduct deserving of sanction” is defined to include: (

i) professional misconduct, (ii) failure to maintain the standards of practice, (iii) conduct unbecoming of a member of the society, and (iv) acting in breach of this Act or the rules including rules of professional ethics or conduct made under paragraph 18 (p)”: s. 41 (c). [ 80 ] Benchers have the authority to “regulate and conduct convocations, proceedings, and meetings of the benchers, a committee of benchers, and the society, and provide for practice and procedure before an adjudication tribunal, the benchers, panels, and committees”: s. 18(2)(c). [ 81 ] The duties of the Vice-President are set out in the Act , including the delegation by Benchers of the Vice-President’s duties to an employee of the Law Society: 22.

(1) The vice-president shall keep the records of the society and shall perform other duties that may be assigned to him or her by the benchers and this Act .

(2) The benchers may delegate the duties of the vice-president to a bencher or employee of the society whenever they consider it necessary or desirable to do so. [ 82 ] The Act does not specify who has the authority to decide whether a written document raising concerns about a member constitutes an allegation. Benchers have exercised their power under section 18(2) (

c) of the Act to adopt rules and delegate the authority to the Vice-President. Rule 9.02(1) of the Law Society Rules states: Consideration by the vice-president 9.02(1) On receipt of written documentation raising concerns about a member, the vice-president shall review it to determine whether or not any concerns raised constitute an allegation and

a) If the vice-president determines the written documentation does not constitute an allegation the vice-president shall provide notice to the writer; or

b) If the vice-president determines the written documentation does constitute an allegation the vice-president shall deal with the allegation pursuant to the Act and the rules. [ 83 ] The Law Society’s Director of Professional Responsibility in correspondence dated January 6, 2021, (at page 143 of the Record) responded to Oleynik’s December 21, 2020, correspondence by advising the Law Society does not have the authority to “make determinations on the validity or admissibility of evidence that is before the Court.” The Law Society stated the concerns raised exceeded the jurisdiction of the Law Society. [ 84 ] The Law Society’s reply to Oleynik further noted that, “in accordance with our standard procedure,” the Law Society provided

his correspondence to Ms. Thomson for information purposes only. [ 85 ] The Law Society, through the Vice President’s role and responsibility under Law Society Rule 9.02(1), has the authority to consider and determine that the concerns raised by Oleynik’s written submissions of December 18, 2021, did not constitute an allegation. [ 86 ] The Law Society relies on “our standard procedure” for providing Oleynik’s correspondence to Ms. Thomson.

Oleynik is correct in that the Law Society has not pointed specifically to a Law Society rule, policy, or operational procedure document for giving a copy of his correspondence to the member. The Law Society instead relies on the authority of section 18(2) (

c) of the Act . I am satisfied that sections 18(2) (

c) and 22 of the Act , read together and contextually, gives broad authority to the Benchers for the Law Society to delegate responsibility to the Director of Professional Responsibility for the in-take and administration of correspondence. The Director provided a copy of Oleynik’s correspondence to the member in keeping with the Law Society’s expressed standard procedure. [ 87 ] Moreover, the Law Society did not deprive Oleynik of any procedural fairness by copying his correspondence to Ms.

Thomson. [ 88 ] One final point on what Oleynik refers to as the “summary dismissal” of his allegation: The “summary dismissal” was not the last of it by any means. Oleynik wrote the Law Society on two more occasions to challenge the Law Society’s position and to clarify the specific nature of his allegations against Ms. Thomson. The Committee ultimately considered and dismissed all nine of the allegations.

b) No Referral to Alternative Dispute Resolution [ 89 ]

Section 44 of the Act permits the Vice-President to resolve an allegation through alternative dispute resolution, where the complainant and the member consent. [ 90 ] Ms. Thomson indicated that she did not believe the allegations could be resolved through alternative dispute resolution, and she did not consent to such a process for resolution.

In her correspondence of May 5, 2021, to the Vice-President, she stated: Lastly, I regret to advise that given the number of accusations that have been levelled towards me in this forum, before the Information and Privacy Commissioner, the complaint to the Royal Newfoundland Constabulary, and Dr. Oleynik’s allegation and conduct in the 18 matters we are engaged in before the Supreme Court of Newfoundland and Labrador and the Court of Appeal, I do not anticipate that these allegations may be successfully resolved through alternative dispute resolution mechanisms. [ 91 ] Without Ms.

Thomson’s consent, the Vice-President could not proceed with alternative dispute resolution.

c) Vice-President’s Report to the Committee and the Referral of Allegations [ 92 ] The Vice-President followed proper procedure in the reporting and referral of Oleynik’s allegations to the Committee. [ 93 ] The Vice-President provided the Committee with a copy of all correspondence received relating to Oleynik’s allegations. This constituted the report. There is no requirement that the report be a separate document. [ 94 ] The Law Society followed its normal procedure in the processing of the allegations. The Director of Professional Responsibility summarized the contents of the allegations and provided a

summary of the allegations to Oleynik on March 3, 2021. In an email on the same date, Oleynik confirmed, “your

summary of the allegations I have made is accurate.” On April 7, 2021, the Director of Professional Responsibility confirmed that the Vice-President determined that his additional allegations (as outlined in his “Further Submissions” of March 30, 2021) “will be dealt with in the framework of” his original allegations. [ 95 ] Oleynik’s submissions before the Court adds undue confusion and complication to the allegations he had made and considered by the Committee. [ 96 ] At paragraph 53 of his March 3, 2022 brief, he outlines 11 allegations.

The following two allegations outlined in paragraph 7 above are excluded: viii) attempted to deceive a tribunal or influence the course of justice by offering false evidence; and ix) knowingly asserted something as true a fact when its truth cannot be reasonably supported by evidence. [ 97 ] The following allegations were added in his brief: g. Ms. Thomson substituted or caused to substitute a draft Order approved at the case management meeting of March 17, 2021 for a draft Order that had been neither shared with the parties nor approved in open court. h. Ms.

Thomson acted in a conflict-of-interest situation when making written and oral submission to the Court of Appeal she was de facto defending herself without acknowledging it and managing the conflict-of-interest situation; i. Appearing before the Court on Ms. Thomson’s behalf, her second chair, Mr. Penney improperly submitted his own affidavit evidence before the Court, which was incomplete and/or contained invalid information; j. Ms. Thomson and Mr. Penney misled the Court and the Society by providing the invalid foundational information for the expert report produced on behalf of SM;

k. Ms. Thomson’s second chair, Mr. Penney, advised MUN’s President and Vice-Chancellor to dismiss the Appellant allegedly “for cause” citing his Allegation made against Ms. Thomson as a culminating incident. [ 98 ] Oleynik removed allegation viii (attempted to deceive a tribunal or influence the course of justice by offering false evidence) from his list of allegations. [ 99 ] Item g. was noted in Oleynik’s March 30, 2021 correspondence: The other irregular situation caused by Ms. Thomson’s ‘attempts to deceive a tribunal or influence the course of justice by offering false evidence; occurred on March 29, 2021.

On that day, the complainant received a copy of the Order made with respect to the Respondent’s application for leave to file a part of the record in the proceeding 201901G5833 under seal. Ms. Thomson was instructed by the Court to draft this order exchanging it with the parties prior to its approval by the Court. [ 100 ] The Committee addressed this as allegation viii (which was part of the

summary provided by the Director of Professional Responsibility) in its decision. [ 101 ] The Committee decided item k. as allegation vii, specifically that Ms. Thomson complained to Oleynik’s employer, Memorial, alleging that filing a complaint amounts to vexations behavior, which has resulted in his employer stating its intention to dismiss him ‘for cause’ as a result. In its decision, the Committee stated: The Committee noted that Koren Thomson is free to tell her client, and others, about an allegation filed against her with the Law Society of Newfoundland and Labrador.

Further, the Committee noted that it would be reasonable for Koren Thomson to conclude that she may have been bound to advise her client of the allegation filed again her. [ 102 ] The Committee did not consider items h., i., and j. as allegations. Since the

summary of allegations prepared by the Director of Professional Responsibility did not include these items, which the Director shared with him and Oleynik confirmed, there is no reasonable expectation that the Committee would consider them. [ 103 ] The Record confirms these additional allegations arose in the course of Oleynik’s responses to Ms. Thomson’s correspondence to the Law Society. Item h. (conflict of interest) did not arise until October 7, 2021 (Record, page 832); item j. on June 18, 2021, in response to Ms.

Thomson’s expert report (Record, page 740); and item i. arose June 1, 2021 (Record, page 504). [ 104 ] I accept the Law Society’s position that it is not clear from the Record that these items were intended to be new allegations, nor would it be appropriate for new allegations to continue to arise following Ms. Thomson’s response to the allegations. [ 105 ] Nothing precludes Oleynik, the Law Society submits, from filing new or additional allegations.

d) Extension of Time and Delay [ 106 ] The Law Society justifiably permitted Ms. Thomson’s request for extension of time to respond to the serious allegations against her. A request for an extension of time is within the authority of the Law Society. The extension caused no prejudice to Oleynik. Neither did the time duration for the Committee to determine his allegations cause any prejudice to him. [ 107 ] On March 11, 2021, Ms. Thomson emailed the Law Society requesting a further 30 days to respond.

She advised the extension was required because client and court commitments limited her capacity to give the allegations “proper consideration and provide a fulsome response.” [ 108 ] The Law Society approved the request, citing and relying on Law Society Rule 9.04(3) for a response “by such other date as may be set” by the Vice-President or the Complaints Authorization Committee. The Vice-President granted the extension, as the Vice- President had not yet referred the allegations to the Committee. The date set for receipt of Ms.

Thomson’s response was on or before May 5, 2021. [ 109 ] Protection of the public requires that the Law Society balance the urgency of a response with a member’s responsibility to client and court commitments. [ 110 ] After the Law Society granted the extension request, Oleynik made “Further submissions” on March 30, 2021, based on “fresh evidence” confirming allegations made in his previous submissions. Between December 21, 2020, and March 30, 2021, Oleynik filed nine pieces of correspondence with the Law Society. The Law Society, on April 7, 2021, wrote to Ms.

Thomson providing Oleynik’s March 30, 2021 correspondence and further allegations. [ 111 ] The Law Society received Ms. Thomson’s 11- page response (with exhibits attached consisting of over 200 pages) on May 5, 2021. The fact that the Law Society received Ms. Thomson’s thorough response in less than 30 days after finalization of the allegations shows the priority and seriousness she gave to it. [ 112 ] The Record reveals: 1. June 1, 2021 - Oleynik sent a 17-page “Response to lawyer’s submissions to the Law Society” with another 90 pages of exhibits. 2. June 4, 2021 - Ms.

Thomson sent a rebuttal expert report on the allegations of alteration of metadata.

3. June 18, 2021 - Oleynik wrote to the Law Society objecting to Ms. Thomson’s attempt to rely on the expert report, among othergrounds, after submission of her May 5, 2021 response. 4. July 21, 2021 - Ms. Thomson replied to the Law Society addressing Oleynik’s June 1 and June 18, 2021 correspondence. 5. July 27, 2021 - Oleynik emailed the Law Society requesting an opportunity to respond Ms. Thomson’s most recent correspondence. 6. July 28, 2021 - Oleynik sent a Response with another 49 pages of exhibits. 7.

August 18, 2021 - the Law Society advised the parties the Committee would consider this matter on October 6, 2021. [113] On September 28, 2021, the Director of Professional Responsibility wrote to the parties to advise that “[d]ue to unforeseencircumstances,” the Committee would not be considering the matter on October 6, 2021, but would now be considering it on December8, 2021.

Oleynik wrote the Law Society on October 7, 2021 stating his objection to the postponement, but taking the opportunity toprovide “some additional information” and “to raise a new issue that could not have been raised earlier.” [114] On October 12, 2021, the Director of Professional Responsibility wrote to the parties to advise, “[a]s space on the agenda for anearlier meeting has become available,” the Committee would consider the matter on November 10, 2021.

On October 18, 2021, Ms.Thomson indicated she would not be providing a further reply “in the hopes that we can expedite this matter.” She made the comment,“Memorial has brought an application to have Dr. Oleynik declared a vexatious litigant.” At last, Oleynik wrote to the Law Society withhis commentary on Ms. Thomson’s comment concerning Memorial’s application. [115] The Committee did not delay its determination of the allegations and cause any prejudice to Oleynik.

The Law Society affordedOleynik proper due process and full opportunity to have his allegations determined on a timely basis, especially so given the extensivecorrespondence and material the Committee had to consider. [116] The Law Society followed its own rules and procedures when dealing with the allegations, and I dismiss Oleynik’s claims to thecontrary.

Issue 5 – Did the Law Society fail to identify and manage a conflict-of-interest situation? [117] The Law Society identified and properly managed the conflict of interest with a member of its Executive Committee. [118] After the Law Society decided to proceed with Oleynik’s allegations, he sent an email to the Law Society pointing out thatMemorial’s Associate General Counsel, Scott Worsfold, is a member the Law Society Executive Committee and a member of theComplaints Authorization Committee. He submitted that a reasonable apprehension of bias existed since Memorial is the client ofMs. Thomson.

He inquired, “if the Law Society has specific procedures for managing conflicts of interest in such situations” andrequested reference to the relevant documents. [119] The Director of Professional Responsibility responded to Oleynik noting that the Vice-President oversees matters before theComplaints Authorization Committee and not the Executive Committee. The Director indicated the names of the Benchers comprisingthe Complaints Authorization Committee and that Mr. Worsfold was an alternate member.

The Director explained when the Vice-President refers a matter to the Committee; the members of the Committee complete a conflict check prior to consideration of anymatter. The Director provides the parties with the intended composition of the Committee to highlight any concerns with thecomposition. The Director acknowledged Oleynik’s concerns with Mr. Worsfold, and confirmed he would not be a member of theCommittee that considers this matter. [120] The Law Society’s assurance, that Mr. Worsfold would play no role in the consideration of the allegations, was not good enoughfor Oleynik.

He insists that it was incumbent upon the Law Society to ensure that the members of the Committee considering hisallegations not sit on any other panels with Mr. Worsfold. The other panels would be considering allegations against other lawyers andother complainants. [121] Oleynik argues that given Mr. Worsfold advised Memorial’s Information Access and Privacy Office, gave instructions to Ms.Thomson, and played a

part in the drafting of Memorial’s termination letter; Mr. Worsfold could not sit on any other panels of theComplainants Authorization Committee. [122] Oleynik’s argument is inconsistent with the statutory scheme. The Act (s. 42) gives authority to the Benchers to appoint at leastthree of their members, one of whom is an appointed bencher, to constitute the Committee. The Law Society provides for alternatemembers of the Committee where there are conflicts.

The conflict-check protocol, and the ability to call on alternate members in theevent of a conflict, allows Benchers to give effect to their statutory mandate. [123] There is no requirement at law to support Oleynik’s argument that the Law Society was obligated to preclude Mr. Worsfold fromsitting on other panels with the Committee members. The authority Oleynik relies on does not support his argument: Bussiere v.

GrainServices Union, (SK KB), [1999] 2 W.W.R. 171, 46 C.L.R.B.R. (2d) 293 (K.B.), at para. 28. [124] In Bussiere, the application before the Saskatchewan Labour Relations Board involved two union members alleging unfairrepresentation by their union following their permanent layoff from their employer. The union’s key witness at the hearing before theBoard was a part-time member of the Board. His evidence required that the Board make credibility findings. The Board accepted his

evidence and dismissed the application. While the decision was under reserve, the union’s witness sat with the chairperson that heard the application on other panels of the Board. An apprehension of bias was established, and the decision was set aside with a new hearing ordered. [ 125 ] Unlike Bussiere , Mr. Worsfold did not give evidence before the Committee and the Committee members did not have to assess any evidence of Mr.

Worsfold in consideration of the allegations. [ 126 ] Oleynik also fails in his attempt to distinguish the precedents in this jurisdiction for when the close connection between a party and the decision-maker warrants a conclusion that a reasonable apprehension of bias exists: Newfoundland and Labrador Association of Public and Private Employees v. Memorial University (Fisheries and Marine Institute) , 2017 NLTD(G) 131, at para. 36; and Aylward , at para. 34 . [ 127 ] Mr. Worsfold played no role in the Committee’s considerations of the allegations and decision-making process.

Nothing in the governing legislation and legal authorities precluded Mr. Worsfold from sitting on other panels of the Complaints Authorization Committee. [ 128 ] Oleynik’s appeal on this issue cannot succeed. Issue 6 – Did the Law Society fail to investigate the allegation of alteration of court records? [ 129 ] On the reasonableness standard, the Committee’s approach to the investigation of the allegation of alteration of court records is entitled to deference.

The Committee’s reasoning reflects it adequately considered the allegation and no further investigation was necessary. [ 130 ] The Committee considered: (

i) correspondence from Oleynik, specifying the details of his allegation and Ms. Thomson’s correspondence in reply to the allegation of alteration of court records; and (ii) two expert reports, one submitted by Oleynik and one in rebuttal from Ms.

Thomson. [ 131 ] The Committee’s decision stated: With respect to allegation (ii), that Koren Thomson misled the Court by providing a false explanation of how the metadata and contents of the two emails produced for inspection and copying had been altered, the Committee is of the opinion that there are no reasonable grounds to believe that Koren Thomson engaged in conduct deserving of sanction as alleged. Koren Thomson had a duty to her client to raise every issue and advance every argument.

The Committee is of the opinion that she was bound by the Code to advance the client’s position with respect to their explanation. The Committee noted that a lawyer cannot mislead the court, however, a lawyer can be wrong in an explanation offered. The Committee is of the opinion that Koren Thomson reasonably brought forward her client’s position and supported it with their expert’s evidence.

While the Committee is of the opinion that they need not decide whether the metadata and/or documents were altered, they found no reasonable basis on the evidence to suggest that Koren Thomson misled the Court, rather Koren Thomson advanced her client’s argument. [ 132 ] The Committee has “a broad discretion” in the procedure it adopts when considering allegations. In Aylward (at para 48 ) the NL Court of Appeal concluded, “Considerable deference must be, therefore, given to the Committee to deal with the complaint based on the correspondence it received” from the parties.

It was open to the Committee to accept Ms. Thomson’s explanation, and to decide there was no reasonable basis on the totality of the evidence to investigate further. [ 133 ] The scope of the Committee’s duty to investigate, as noted from the quoted source in Martin (at para. 21), “is limited to that which is necessary to determine whether there is a reasonable basis in the evidence” to believe the member has engaged in conduct deserving of sanction. [ 134 ] I defer to the Committee’s handling of the allegation, and dismiss this ground of appeal.

Issue 7 – Did the Law Society fail to consider all evidence produced by Oleynik in support of his allegations? [ 135 ] Oleynik alleges that the Committee failed to consider all the evidence he put forth in support of the allegations. [ 136 ] The Committee’s decision reflects it considered the extensive evidence presented, and there is no reasonable basis to set aside the determination to dismiss all the allegations. [ 137 ] The Record demonstrates that the Law Society provided both Oleynik and Ms. Thomson with multiple opportunities to present information and their written submissions to the Committee.

The Committee had all of the material before it for review and consideration prior to its determination. [ 138 ] The Committee’s reasons outline specific and general references to material from the Record. Thompson J in Harris v. Law Society (Newfoundland and Labrador) , 2019 NLSC 196 , (at para. 14 ) stated, “I have to take it as a given that the CAC fully reviewed the material” before it.

Since in Harris the CAC did not provide reasons in support of its conclusion, I would add that when reasons are provided, there is a presumption that the Committee considered all evidence, unless it is apparent otherwise from the reasoning. [ 139 ] There is nothing apparent from the Committee’s reasoning that allows me to conclude that the Committee failed to consider all the evidence Oleynik produced. [ 140 ] Essentially, Oleynik is dissatisfied with the Committee’s assessment of the evidence and the reasons provided.

[141] The duty to give reasons is “context-specific”: Vavilov (at para. 77). This Court has held the CAC is not obliged to providereasons when an allegation is dismissed: Martin (at para. 22); Harris (at para. 13) and Connolly v. Law Society (Newfoundland andLabrador), 2011 NLTD(G) 152 (at para. 23). In the context of the issuance of a letter of counsel to a member, on an application forjudicial review, this Court had held that the CAC has a duty to provide reasons: Buckingham v.

Law Society of Newfoundland andLabrador, 2022 NLSC 37 (at para. 32) (Currently under appeal, Law Society of Newfoundland and Labrador v Buckingham, 2022 NLCA56). [142] Considering the serious nature of the allegations, the volume of evidence and detailed submissions, the Committee chose to givereasons. Having chosen to give reasons, the focus of reasonableness review is on the decision, including the Committee’s reasoningprocess and the outcome: Vavilov (at para 83). [143] The burden is on Oleynik to show that the decision is unreasonable.

On a reasonableness standard, the Court must be satisfied“that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification,intelligibility, and transparency”: Vavilov, (at para 100). Any shortcomings or flaws must be sufficiently central or significant to renderthe decision unreasonable. [144] A failure to make specific reference to one or more documents, or to explain why Oleynik’s expert opinion on meta data was notaccepted over Ms. Thomson’s expert opinion, does not mean the Committee failed to consider and assess all the evidence.

Given thestatutory mandate and screening role of the Committee, it is not tasked with the responsibility of making “findings of fact”:Silverthorne v. College of Social Workers & Social Services Workers (Ontario), (ON SCDC), 145 A.C.W.S. (3d)351, 264 D.L.R. (4th) 175 (Ont. Sup. Ct. (D.C.)), at para. 15.

The Committee is not required to provide reasons, akin to as a court ortribunal would do as triers of fact, explaining the weight, or lack thereof, placed on evidence. [145] I am satisfied the Committee assessed the evidence and justified its dismissal of each of the allegations with intelligible andtransparent reasons. The reasons, when read with the entire Record, support the Committee’s opinion that there was no reasonable basisin the evidence to believe Ms. Thomson engaged in conduct deserving of sanction. COSTS [146] Costs are in the discretion of the Court: Rule 55.02(1) and s. 53, Judicature Act.

The Scale of Costs in the Appendix to Rule 55has one unit value starting at Column 1 up to five units for Column 5.

I am exercising my discretion to award the Law Society Column 4costs. [147] I have considered the following factors identified in Rule 54.04(4): • the importance of the issues to the Law Society and its member; • the complexity, difficulty, and even novelty of some of the issues raised; • the manner in which Oleynik conducted the appeal; and • the disposition of costs in other appeals involving self-represented persons and the Law Society. [148] The importance of the matter to the Law Society and its member is readily apparent.

The Law Society in the handling ofallegations engaging conduct deserving of sanction must have a procedurally fair and impartial process. Otherwise, there is serious riskof the undermining and loss of public confidence in the Law Society’s ability of self-governance and protection of the public. [149] As for the importance to the member, the effort Ms. Thomson had to put into her responses to the allegations detracted from herduty and responsibility to the client in other proceedings before the Court. [150] Oleynik is self-represented.

Nevertheless, he is one of the most prolific litigators before our Court, highly intelligent andsophisticated. He made this appeal complex and difficult. His filings and submissions were voluminous requiring considerable time andeffort on the part of the Law Society. He submitted two briefs totaling 98 pages and two Affidavits consisting of 333 pages with exhibitsattached. [151] I am not sanctioning Oleynik with costs for asking me to recuse myself. Although I refused to recuse myself, in light of all thecircumstances, he was entitled to make his case for recusal.

I recognize he legitimately brought attention to the confusion created by theLaw Society referring, in its publications, to me and other sitting judges, who are former presidents of the Law Society, as “HonoraryBenchers.” [152] There are, however, aspects to Oleynik’s conduct of the proceeding that require the Court’s rebuke. He took unnecessary time ofthe Court and Law Society on the issue of the Case Management Order and other preliminary issues.

His written submissions quiteunfairly and unnecessarily impugned the conduct of a Court official. [153] A final consideration is what awards courts have made in other appeals. The Court of Appeal in Aylward awarded Column 3against the self-represented appellant to the Law Society. There was no order as to costs in Martin or in Harris. Orsborn CJ (as he thenwas) ordered Column 3 costs to the Law Society against the self-represented applicant in Connolly, at para. 54. The courts in these casesdid not elaborate on any particular considerations for the cost awards.

[ 154 ] The Law Society shall have its costs on Column 4, taxed by a Taxing Master if the parties are unable to agree. CONCLUSION [ 155 ] I have decided: 1. The Court has inherent jurisdiction to make the Case Management Order without first hearing from the parties. 2. Oleynik has not established that a reasonable apprehension of bias exists requiring my disqualification and recusal. 3. The Record as filed by the Law Society is complete, and no additional evidence is permitted. 4. The Law Society properly followed its own rules and procedures in dealing with Oleynik’s allegations. 5.

The Law Society identified and properly managed the conflict of interest with a member of its Executive Committee. 6. On the reasonableness standard of review, the Committee’s reasoning reflects it adequately considered the allegation of alteration of court records, and no further investigation was necessary. 7. The Committee’s decision reflects it considered the extensive evidence presented, and there is no reasonable basis to set aside the determination to dismiss all the allegations.

DISPOSITION [ 156 ] Oleynik’s appeal is dismissed with Column 4 costs payable to the Law Society. _____________________________ Glen L.C. Noel Justice

Schedule “A