Law Times

Law Times • June 22, 2009 NEWS PAGE 5 exonerated following an over- turned disbarment ruling, with the Ontario Court of Appeal denying a law society eff ort to quash a Divisional Court ruling in the matter. "It's really embarrassing to the legal profession that when we are dealing with questions of natural justice and fairness in the judicial and quasi-judicial forums that our own govern- ing body has been overturned by the courts with respect to the manner in which they did violate this man's rights," says Tracey Tremayne-Lloyd, Gar- diner Roberts LLP partner and lawyer for Joseal Igbinosun. Both the law society and Igbinosun — who faced al- legations of sexual assault — brought appeals to the prov- ince's top court, following the Divisional Court's July 2008 decision in Igbinosun v. Law Society of Upper Canada, ac- cording to the Court of Appeal decision written by Justice Kar- en Weiler on behalf of fellow judges, Justice Eileen Gillese and Justice David Watt. Th e Divisional Court set aside a law society appeal panel decision of September 2006, which had backed a hearing panel's fi nding of professional misconduct and order of dis- barment against Igbinosun. It also remitted the LSUC's pro- fessional misconduct allegations and possible penalty to a newly formed, full panel hearing. Th e Divisional Court found the that hearing panel had breached the standards of natu- ral justice in two ways, wrote Weiler: It had refused to grant Igbinosun a brief adjournment to allow him to fi nd a law- yer, and had failed to give him enough notice of plans to move ahead with the penalty phase. Th e Divisional Court at that time rejected a request from Igbinosun for the proceed- ings against him to be stayed on the grounds of delay. Th e Court of Appeal denied his appeal on that aspect. Th e law society, meanwhile, appealed the Divisional Court's ruling on breaches of the stan- dards of natural justice. In terms of the ruling that the denial of an adjournment was a denial of natural justice, the law society argued that the "Divisional Court engaged in a fresh exercise of discretion that amounted to impermissible sec- ond-guessing," wrote Weiler. But the appeal court disagreed on this front. It noted that Di- visional Court Justice Anne Molloy concluded that the law society panels "erred by failing to consider the lack of any preju- dice from the minimal delay be- ing requested," said Weiler. Also, the appeal court found that, "Th e only prejudice that the hearing panel considered was the prejudice to the public Igbinosun clears hurdle in bid for exoneration A BY ROBERT TODD Law Times Toronto lawyer has cleared another hurdle in his attempt to be interest in the effi cient admin- istration of its proceedings, i.e. that the matter had been await- ing resolution for a long time. Th e hearing panel did not con- sider the prejudice to Igbino- sun of forcing him on without counsel nor weigh that preju- dice against the public interest in having the matter proceed" on the date scheduled. Th e appeal court therefore agreed with the Divisional Court's conclusion that Igbino- sun was denied natural justice on that adjournment request. Th e appeal court also agreed with the Divisional Court's fi nd- ing that the appeal panel was wrong to conclude that the pen- alty phase of Igbinosun's matter was not procedurally unfair. "Natural justice requires that reasonable notice of a proceed- ing be given to all parties to that proceeding," wrote Weiler. "As Molloy J. held, while the law society did give Igbino- sun some notice of the penalty phase of the hearing, that no- tice was not reasonable. Th is unreasonableness is further indicated by the fact that the hearing panel had to dispense with the law society's own no- tice requirements regarding the disclosure of victim impact statements in order to hold the penalty hearing when it did." Th e appeal court also de- nied Igbinosun's request for stay. But it noted that the Di- visional Court decision "does not preclude Igbinosun from bringing a new motion to stay proceedings on the basis of un- due delay," said Weiler. Th ree women accused Igbino- sun of sexual assault in February 1998, but criminal charges in the matter were stayed in December 2003 on grounds of delay. Allegations of professional misconduct stemming from the allegations came forward in March 2004, and in Sep- tember 2006 a hearing panel found him guilty of profes- sional misconduct. He was disbarred and ordered to pay the society $82,042.80. In October 2007, an appeal panel dismissed Igbinosun's appeal, while reducing the cost award. While Divisional Court Jus- tice Molloy and Justice John Jennings in the July 2008 ma- jority decision ruled the matter should be sent back to a hear- ing panel, dissenting Justice Romain Pitt found that the matter should be stayed. Molloy stated that part of the appeal panel's decision was "inexplicable." At one point the panel found that Igbinosun had not been given adequate notice of the penalty hearing, but later stated the opposite, said Molloy. "Th ere was a clear breach of natural justice in proceeding to the penalty phase without adequate notice to Mr. Igbino- sun." She added there was no need for the penalty phase to move ahead so quickly. "Th is was a very seri- ous matter, with potentially dire consequences for Mr. Untitled-3 1www.lawtimesnews.com Igbinosun," wrote Molloy. Molloy then addressed the panel's Sept. 18, 2006 refusal to adjourn, and stated she found the appeal panel's reasons to be "perplexing" and "mystifying." Tremayne-Lloyd says it would now be "almost impos- sible to have a fair trial" for Igbinosun at the law society tribunal level, with the under- lying allegations having taken place over 10 years ago. "I just think that the time is now just so inordinate that it would really be a travesty to Federal Labour & Employment Legislation 2009 try to take this matter to a tri- al on the merits at this stage," she says. Th e law society issued the fol- lowing statement regarding the case: "Court of Appeal decisions speak for themselves. Th e law so- ciety is studying the decision." LT Inside you'll find these important federal Acts and selected regulations: • • • • • • • • • • • • • • • • As well as many regulations under these Acts. 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