Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Professional misconduct / conduct unbecoming – Disciplinary proceedings – Penalties and suspensions – Public interest – Hearings – Conduct of hearings – Adjournment – Judicial review – Procedural fairness – Natural justice – Standard of review – Reasonableness simpliciter – Correctness
Igbinosun v. Law Society of Upper Canada,  O.J. No. 2848, Ontario Superior Court of Justice, July 18, 2008, J.R.R. Jennings, R.W.M. Pitt and A.M. Molloy JJ.
Igbinosun was called to the Ontario bar on February 26, 1998. Subsequently he was accused of sexual assault by three individuals. Criminal charges were laid but were later stayed on the grounds of delay. The LSUC conducted an investigation and commenced disciplinary proceedings against Igbinosun. The discipline hearing proceeded from February 28 to March 3, 2006 during which time the LSUC’s evidence was heard. The hearing was then adjourned and resumed in September 2006 at which point the defence case was to start. Counsel for Igbinosun requested an adjournment which was refused. Igbinosun elected not to participate without the assistance of counsel. The Hearing Panel proceeded in his absence and on September 19, 2006 found Igbinosun guilty of professional misconduct in respect of the three sexual assaults. The next day, on short notice to Igbinosun and again proceeding in his absence, the Hearing Panel ordered Igbinosun to be disbarred effective immediately. He was also ordered to pay costs to the LSUC of more than $82,000.00. Igbinosun appealed to the Appeal Panel. By decision dated October 30, 2007, the Appeal Panel dismissed his Appeal except for reducing the cost award. Igbinosun then appealed to the Superior Court of Justice.
In reviewing the appropriate standard of review, the Court noted that the recent decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,  S.C.J. No. 9 had revisited the appropriate standards of review for administrative tribunals and determined that all such decisions would henceforth be reviewed on either a correctness or reasonableness standard. In this case, the Court held that the Appeal Panel was entitled to deference on its findings of mixed fact and law, determination of penalty and its interpretation of the Act and its decision should only be interfered with if unreasonable. However, on questions of law outside that area of expertise, the Appeal Panel was required to be correct. Similarly, the Appeal Panel was required to accord deference to decisions of the Hearing Panel on questions of fact and questions of mixed fact and law. The Appeal Panel was only entitled to intervene if the decision of the Hearing Panel was unreasonable or incorrect in law. The standard of review to be applied by the Appeal Panel in its consideration of the Hearing Panel’s decision was a question of law and was required to be correct. With respect to issues involving the denial of procedural fairness and breach of principles of natural justice, the issue of standard of review did not arise as a tribunal is required to conduct its proceedings fairly. Where a party is denied procedural fairness or natural justice, the decision flowing from such a hearing must be set aside.
The Court held that Igbinosun was denied any meaningful opportunity to be heard on the penalty to be imposed against him. It noted that this was a very serious matter with potentially dire consequences for Igbinosun and there was no demonstrated prejudice to the LSUC if the penalty phase had proceeded at its normal pace with full notice to Igbinosun, providing him with a meaningful opportunity to prepare, present evidence and make submissions. Proceeding with the imposition of penalty in the manner adopted by the Hearing Panel was a clear breach of natural justice and the Court held that the penalty imposed could not stand.
The Court reviewed the decision by the Hearing Panel to refuse Igbinosun an adjournment at the start of his case. The Court noted that neither the Reasons of the Appeal Panel nor the Reasons of the Hearing Panel identified any prejudice that would have been caused if the adjournment requested had been granted. The Court held that the Hearing Panel failed to act judiciously in refusing the adjournment and, in particular, failed to balance the public interest in having the hearing concluded expeditiously against the very serious prejudice to Igbinosun of being forced to proceed in the circumstances without counsel. To the extent the Appeal Panel found to the contrary, it erred in law by failing to complete its analysis of the issue and failing to provide any reasons for its decision dismissing this aspect of the Appeal. As a result, the Court held that the decision of the Hearing Panel must be quashed.
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