Quashed

The Ontario Law Society Hearing Division quashed a request that had sought the testimony of disciplinary counsel

This is a motion by the Applicant, Law Society of Ontario (LSO), to quash a request by the Respondent Martin Christopher Schulz (the Licensee) to compel Elaine Strosberg, a discipline counsel in the Professional Regulation Division of the LSO, to appear as a witness on the Licensee’s pending motion to permanently stay this proceeding against him.

Charges

The notice of application in this matter was originally issued on August 14, 2020. The notice alleges that Mr. Schulz engaged in conduct unbecoming a lawyer licensee contrary to s. 33 of the Law Society Act, RSO 1990, c. L.8, by committing the criminal offence of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada. The Licensee was found guilty of this offence by the Honourable Justice Miller of the Superior Court of Justice in Milton, Ontario, on March 23, 2016.

Following the conviction, the LSO sought an interim suspension of Mr. Schulz’s licence. In September 2016, that application was denied, but certain restrictions  were imposed on his licence prohibiting him from representing, or being alone with, persons under the age of 18.

Following the exhaustion of the criminal appeal process, a Tribunal hearing was held on September 21 and 22, 2021. The Licensee admitted the conviction and that the underlying conduct amounted to conduct unbecoming a licensee. The issue at the hearing was the appropriate penalty.

On December 17, 2021, the panel issued its decision, imposing a nine-month suspension of Mr. Schulz’s licence: Law Society of Ontario v. Schulz, 2021 ONLSTH 178.

There was an appeal.

Mr. Schulz identified the following issues on his abuse of process motion relating to either delay in moving the prosecution forward, or in relation to the conduct of LSO counsel, for which he submitted that Ms. Strosberg would have evidence:

•           lack of activity between October 24, 2023, when the Court of Appeal dismissed his application for leave to appeal, and April 11, 2024, when the LSO recommenced the proceeding (relevant to inordinate delay);

•           delay between the date of the interim suspension application in June 2016 and August 2020, when the notice of application was issued; and

•           the question of when Ms. Strosberg first became aware of the fact there was no lay member on the hearing panel and her actions following becoming so aware. In oral argument, the Licensee submitted that this issue was also relevant to the issue of costs.

Merits of the request

This amounts to speculation on Mr. Schulz’s part. It is the type of fishing expedition that is prohibited in respect of any summons, let alone one to be issued to opposing counsel, an issue to which we will return. The Licensee does not provide any evidence that Ms. Strosberg was aware of the lack of a lay member. Rather, he posits a presumption that she knew in the absence of evidence to the contrary. He cannot reverse the onus and avoid his evidentiary burden in this way.

Even if Mr. Schulz had been able to provide some evidentiary basis for Ms. Strosberg’s awareness of the lack of a lay member on the hearing panel at the time of the original hearing, it is not clear that this would have satisfied the requirement of relevance. In response to the LSO’s submission that the issue of the composition of the original hearing panel had been determined by the Divisional Court and could not be relitigated, the Licensee agreed, stating that whether the LSO had made a tactical decision to not object to the panel’s composition prior to the appeal was a decided issue. However, he submitted, the consequences of that decision remained a live issue for the purpose of his stay motion. This seems too fine a distinction to attempt to draw and to us, it seems not possible to separate one thing from the other.

 

As to the delay issues that the Licensee has raised in his stay motion, again he has failed to provide an evidentiary basis for showing that Ms. Strosberg likely has relevant evidence to give on these issues. His affidavit and the evidentiary record generally simply do not address that issue.

 

To the extent that Mr. Schulz submits that “delay happened on Ms. Strosberg’s watch” and thus he should be able to examine her on that basis, that type of fishing expedition, again, is what is prohibited by the case law cited above. This is particularly so where opposing counsel is the targeted witness. To the extent one might speculate that Ms. Strosberg could have relevant evidence to give on the delay issues, it is difficult to imagine that one could separate that evidence from her role as counsel and the solicitor-client privilege that would apply to cover it. The admonition from Caruso where evidence is sought from discipline counsel is cited above.

 

(Mike Frisch)