2017 NLCA 50, 2017 NLCA 50

Kent Morris (applicant) v. Law Society of Newfoundland and Labrador (first respondent) and David Conway, Elaine Reid and Raymond Rose (second respondents) (16/23 and 17/56) Indexed As: Morris v. Law Society of Newfoundland and Labrador 2017 NLCA 50 2 C.A.N.L.R. 159 Court of Appeal of Newfoundland and Labrador Hoegg J.A. August 7, 2017

Summary: The applicant, a long-time lawyer in Newfoundland and Labrador, was suspended from practice in 2007. The Law Society laid a complaint against him in 2009. Matters had been in abeyance since that time. The applicant filed two applications in the Supreme Court Trial Division. One sought the dismissal of the complaint, based on Charter arguments. Another sought a stay of proceedings before the tribunal based on Charter arguments. The Trial Division dismissed both applications.

The applicant appealed and, by way of application, asked for matters to be consolidated, dates set for the appeals and for a stay of the Society’s proceedings against him pending the appeals. Held: Applications dismissed. Hoegg J.A.: Three criteria must be met for a stay application to succeed: there must be a serious issue to be tried; the party requesting the stay must demonstrate irreparable harm if the stay is not granted, and the balance of inconvenience must favor the requesting party. These criteria were not satisfied in this case.

While there were serious issues to be tried, the applicant had not exhausted his remedies before the tribunal and the courts, and therefore did not demonstrate that he would suffer irreparable harm by this Court not granting a stay. Nor does the balance of convenience favour the applicant. Permitting the complaint to proceed as contemplated by the statute prevents fragmentation of the legal process and avoids piecemeal court proceedings.

This approach is in accordance with the jurisprudence which, except in exceptional circumstances, adheres to the principle of non-interference with ongoing administrative processes. It was unnecessary to consolidate the two matters. While there was considerable overlap in the issues, the two appeals were distinctly different in some respects. In this situation, the appeals could be heard one after the other or at the same time. It was also unnecessary to set filing dates for the appeals.

The appellant, had and would continue to have the responsibility and ability “to diligently carry forward” his appeals in accordance with Rule 16 of the Court of Appeal Rules . The applications were dismissed. Cases cited: Warford v. Weir’s Construction Ltd. , 2016 NLCA 65 , 1 C.A.N.L.R. 282 Rees v. Fong, 2017 NLCA 43 Coldwater Indian Band v. Canada (Minister) Indian Affairs and Northern Development, 2014 FCA 277

Coady v. Law Society of Upper Canada , [2004] O.J. No. 4567 Counsel: Appearing on his own behalf, the applicant; Andrew Fitzgerald, for the first respondent; No appearance, for the second respondents. This application was heard and decision rendered orally on July 14, 2017 by Hoegg J.A. The following Memorandum of Disposition was filed on August 7, 2017 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [ 1 ] Mr. Morris is a long-time member of the Law Society of Newfoundland and Labrador (the “Society”), but was suspended from practice in June 2007.

In May 2009 the Society laid a complaint against him. Matters appear to have been in abeyance until August 2015 when Mr. Morris applied to the Supreme Court by way of Interlocutory Application seeking dismissal of the complaint based on various Charter arguments. That application was dismissed by a justice of the Trial Division for the reason that the issues raised in Mr. Morris’ application were properly required to be dealt with by the Society’s disciplinary tribunal hearing the complaint. Mr.

Morris appealed the dismissal of his application to this Court (Appeal 201601H0023) on March 17, 2016. [ 2 ] In January 2017 Mr. Morris filed another Originating Application in the Trial Division of the Supreme Court seeking various jurisdictional, Charter , and prerogative relief and a stay of the disciplinary proceedings. Mr. Morris subsequently amended this Originating Application to include another basis for relief as a result of the tribunal deciding a preliminary objection in advance of the scheduled hearing. The amended application was heard and dismissed by another Supreme Court Justice in May 2017. Mr.

Morris appealed that decision to this Court (2017 01H 0056) on June 11, 2017. [ 3 ] On June 30, 2017, Mr. Morris filed applications in this Court respecting both appeals seeking (1) a stay of the Society’s disciplinary proceedings against him, (2) consolidation of his two appeals in this Court, and (3) dates to be set for the filing of facta respecting the appeals. [ 4 ] Mr. Morris requested the Court to hear his applications as soon as possible because the Society’s disciplinary tribunal was scheduled to hear the complaint against him on Monday, July 17, 2017.

With the co-operation of opposite counsel, the Court accommodated his request and the applications were heard on Friday, July 14, 2017. I dismissed them. My reasons for doing so follow. [ 5 ] The focus of Mr. Morris’ applications was to stay the tribunal’s hearing of the complaint until his two appeals were heard and decided. The test to stay proceedings pending appeal was set out by this Court in Warford v. Weir’s Construction Ltd. , 2016 NLCA 65 , at paras. 15 to 18 and recently confirmed in Rees v. Fong , 2017 NLCA 43 , at para. 7 . In

summary, three criteria must be met for a stay application to succeed: (1) there must be a serious issue to be tried; (2) the party requesting the stay must demonstrate irreparable harm if the stay is not granted; and (3) the balance of inconvenience must favor the requesting party.

[ 6 ] In this case the Society acknowledged that there may be a serious issue to be tried. Upon my review of Mr. Morris’ submissions and the Trial Division decisions, I was unable to say that Mr. Morris’ appeals do not raise a serious issue. Accordingly, there was a serious issue to be tried. [ 7 ] However, Mr. Morris was unable to demonstrate irreparable harm if a stay were not granted. The issues Mr. Morris raised and the relief he sought were preliminary matters which remained to be heard and decided by the tribunal.

I was of the view that after hearing arguments, it was possible that the tribunal would accept one or more of Mr. Morris’ arguments and decide in his favour, with the result that the complaint against him could be at an end and his appeals would be moot. As well, after hearing and deciding the complaint on its merits, the tribunal could also decide the complaint in Mr. Morris’ favor, in which case the complaint would be at an end and the appeals moot. Even if Mr.

Morris were to be found deserving of sanction by the tribunal, he has a statutory right to appeal the tribunal’s decision to this Court which could also be decided in his favor. Accordingly, Mr. Morris had not exhausted his remedies, and therefore did not demonstrate that he would suffer irreparable harm by this Court not granting a stay. [ 8 ] Although not strictly necessary, I will comment on the balance of inconvenience to say that while it may be inconvenient for Mr.

Morris to be subjected to a disciplinary hearing, it is inconvenient for the Society, the public, and the administration of justice generally to further delay the hearing of the complaint. Permitting the complaint to proceed as contemplated by the statute prevents fragmentation of the legal process and avoids piecemeal court proceedings. This approach is in accordance with the jurisprudence which, except in exceptional circumstances, adheres to the principle of non-interference with ongoing administrative processes ( Coldwater Indian Band v.

Canada (Minister) Indian Affairs and Northern Development , 2014 FCA 277 , at paras. 9 and 13 and Coady v. Law Society of Upper Canada , [2004] O.J. No. 4567 ). [ 9 ] I also denied Mr. Morris’ request for consolidation of his two appeals. I was of the view that it was unnecessary to consolidate these matters. While there was considerable overlap in the issues, the two appeals were distinctly different in some respects.

In this situation, the appeals could be heard one after the other or at the same time with submissions relevant to both appeals heard once yet applied to both. [ 10 ] I did not set filing dates for the two appeals as I was of the view that it was also unnecessary. Mr. Morris, as the appellant, had and would continue to have the responsibility and ability “to diligently carry forward” and “perfect” his appeals in order to bring them on for hearing (Rule 16 of the Court of Appeal Rules ). [ 11 ] Accordingly, I dismissed Mr.

Morris’ applications, and made no order as to costs. [ 12 ] On July 18, 2017 three days after my oral decision, this Court received Notices of Discontinuance respecting both appeals. The proceedings involving these matters in this Court are therefore at an end. Applications dismissed .