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No Reasonable Apprehension Of Bias

By Michael Frisch

A motion to disqualify prosecuting counsel has been denied by the Ontario Law Society Tribunal Hearing Division

The issues to be determined on this motion are:

•           Has the licensee established facts from which a reasonable apprehension of bias can be drawn in respect of Mr. Kates and Ms. Novac (Discipline Counsel)?

•           Has the licensee identified a disqualifying conflict of interest such that Mr. Kates and Ms. Novac should be disqualified from acting for the LSO in this matter?

The answer to each of these questions is “No.” No reasonable apprehension of bias can be drawn from the simple fact that Discipline Counsel takes instructions from the LSO in the context of a conduct hearing in respect of a professional regulator. Mr. Watson adduced no evidence from which such an inference could be drawn. The licensee has also not adduced any evidence of a disqualifying conflict of interest.
 
Findings

Mr. Watson argues that discipline counsel are “prosecutors” for the purposes of Rule 5.1‑3 of the Rules. The LSO agrees that discipline counsel must abide by the Rules, and by analogy, Rule 5.1‑3 applies to their work. This Rule states that “When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.” The commentary to this Rule makes it clear that the Rule is addressing the role of a public prosecutor in a criminal or quasi-criminal context. That is not the role of discipline counsel, who are the lawyers acting for the LSO in the conduct hearing. Insofar as Rule 5.1‑3 applies by analogy, this is limited to the duty of discipline counsel to exercise their discretion reasonably and for proper purposes, and to act with fairness towards the licensee who is subject to the conduct application, guided as appropriate by policy, direction and instructions from the LSO: Law Society of Upper Canada v DeMerchant, 2017 ONLSTA 5 at paras 17 and 21.

Mr. Watson appears to have erroneously conflated the fact that the LSO has a duty to protect the public interest with the public functions of a criminal prosecutor, and has then superimposed the LSO’s public protection mandate onto discipline counsel to turn them into a public prosecutor. This is incorrect. In any event, to the extent that Rule 5.1-3 applies to the conduct of discipline counsel, and Mr. Kates in this case, I find that he has complied with this Rule, based on the evidence before me. The evidence shows that he has acted resolutely, honourably and he has treated Mr. Watson with candour, fairness, courtesy, and respect.
 
Denied

 I conclude that Mr. Watson has failed to establish either ground upon which he seeks to have Discipline Counsel disqualified. Both arguments were wholly without merit.

I note that this motion was not brought until after Mr. Watson had failed to respond to two requests to admit that had been served by the LSO, and he was therefore deemed to have admitted to the facts contained therein. On this motion, Mr. Watson sought not only to remove Discipline Counsel but to vitiate all the steps that had been taken in the proceeding, i.e. including the delivery of the requests to admit. This has the appearance of a back door attempt by Mr. Watson to relieve himself of the deemed admissions from his failure to respond to the requests to admit. I am alive to the fact that disqualification motions may be tactical delaying tactics or used for other positioning purposes: Lautec Properties Inc. v Barzel Windsor (1984) Inc., 2002 CanLII 7578 (ON SC) at para 44. I conclude that is what has happened in this case given the complete absence of any legitimate complaint against Mr. Kates and Ms. Novac.
 
(Mike Frisch)

Posted in:
Bar Discipline & Process