Saturday, October 6, 2018

Recusal Motion Denied

The Law Society of Upper Canada Tribunal Hearing Division (David Wright, chair) denied a recusal motion that sought to deny him authority to assign a hearing panel and dismissal of charges

The respondent calls himself Spirit Warrior. He is an Ontario lawyer whose licence is currently suspended on an interim interlocutory basis. He self-identifies as non-status Métis, and as a member of the Kinakwii Nation/Confederacy. The Law Society has brought a motion for an interlocutory suspension, as well as a capacity application.

Under the Law Society Act, RSO 1990, c. L.8, s. 49.23 (the “Act”), the Tribunal Chair, or in the Chair’s absence, the Vice-Chair, assigns Tribunal members to hearings. The respondent asks that I recuse myself from assigning the panel for cases to which he is a party on the basis of reasonable apprehension of bias.

He raises two types of arguments. First, he alleges that various things I have allegedly said or done, or failed to do, show a reasonable apprehension of bias, either conscious or unconscious, about this case. Second, he says that because he is Indigenous, any panel of Tribunal members I assign would be biased. He argues that I am required to end the existence of the Tribunal under Ontario law and have it continue under the joint jurisdiction of Chief Buffalo Eagle. He submits that his status as an Ontario lawyer should have already been decided in a circle led by a Clan Mother.

The respondent argues that I am not limited by Ontario legislation and that the principles of equity permit and require me to act in accordance with my conscience. He asks that I recuse myself from naming any more panels, reinstate his licence, establish the rule that Indigenous issues are adjudicated by three Indigenous panelists who are status, non-status or Métis as elected by the respondent, receive nominations for a Clan Mother co-chair, and strike down the federal Indian Act, RSC 1985, c. I-5.

The allegations about my conduct do not establish a reasonable apprehension of bias. The respondent takes issue with decisions such as how the case has been managed and whether I agreed with or anticipated legal arguments. None of those things, assuming the correctness of everything alleged, would be interpreted by a reasonable person to suggest I would not have an open mind in assigning panels or deciding matters in this case.

 The respondent’s broader arguments suggesting a legal requirement for an Indigenous panel also do not establish a reasonable apprehension of bias. The respondent is repeating the argument that a panel that is not composed of Indigenous people is biased, previously heard and rejected in Law Society of Upper Canada v. Bogue2018 ONLSTH 38 (CanLII) (Bogue #1). The same relief, in essence, was also sought and rejected in the motion for the appointment of an Indigenous tribunal: Law Society of Upper Canada v. Bogue2018 ONLSTH 46 (CanLII) (Bogue #2). The parties are bound by those decisions and their conclusions should not be re-litigated.

(Mike Frisch)

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