In Peters v. The Law Society of Upper Canada, 2017 ONSC 7142, the practitioner was alleged to have failed to fulfill her professional obligations including failing to attend scheduled court dates in a number of cases. She sought disclosure of the investigation files of other practitioners involved in two of those cases. The regulator refused even though those files dealt with clients shared with Ms. Peters. The Court agreed:
Given that the conduct at issue in the R matter concerned Ms. Peters’ failure to attend court on three occasions and her failure to pay a costs order, it was reasonable for the Hearing Panel to conclude that a complaint against the opposing lawyer in the same proceeding had no relevance. It was Ms. Peters’ conduct that was at issue, not the opposing lawyer’s. In the C matter, the complaint was against a paralegal that Ms. Peters’ client had retained before she retained Ms. Peters. Again, it was not unreasonable to find that this complaint had no relevance to the allegations against Ms. Peters, which concerned her conduct, not that of the paralegal.
The implication of this decision is that the files of the regulator’s investigation of other practitioners can be disclosed where relevant. However, disclosure can be safely refused where the other files do not relate to the actual allegations against the practitioner even if there is some connection between the cases.
The Divisional Court also refused to hear an argument on appeal about delay by the regulator where the issue was not raised at the hearing and the court would not have a proper record to consider (e.g., the regulator’s explanation for the apparent delay).