The appeal by the Law Society of Upper Canada (“LSUC”) from a decision of the Appeal Panel which reversed the Hearing Panel’s decision refusing to reinstate a former judge’s membership in the Law Society was dismissed where the Court agreed with the Appeal Panel that the Hearing Panel’s finding as to the appropriate standard of proof was incorrect and undermined the Hearing Panel’s decision to such an extent that its conclusions could not stand

Administrative law – Decisions of administrative tribunals – Law Societies – Judges – Professional misconduct / conduct unbecoming – Barristers and solicitors – Restoration of membership – Public interest – Hearings – Conduct of hearings – Jurisdiction – Judicial review – Evidence – Standard of proof

Law Society of Upper Canada v. Evans, [2008] O.J. No. 2729, Ontario Superior Court of Justice, July 8, 2008, F.P. Kiteley, A.M. Molloy and K.E. Swinton JJ.

Evans was a judge of the Ontario Court of Justice from 1997 until his resignation in November 2004. He resigned after he was found by the Ontario Judicial Council to have committed acts of serious misconduct involving six female subordinates. Evans, intending to return to the practice of law, then applied to the LSUC for reinstatement of his membership. The LSUC established a Hearing Panel to determine whether Evans should be reinstated. The Hearing Panel held that Evans had the burden to present “clear and convincing proof based on cogent evidence” that the reinstatement should be granted. The Hearing Panel dismissed Evans’ application on the ground that insufficient time had passed since the misconduct, the character witnesses who testified on Evans’ behalf did not accept that he had committed the conduct and Evans had not proven he was unlikely to re-offend. Evans appealed this decision to an Appeal Panel which held that the Hearing Panel erred in law by restricting its jurisdiction to only the two options of restoration without conditions or refusal to restore. The Appeal Panel also held that the Hearing Panel erred in the standard of proof it applied. The Appeal Panel then determined the matter on the merits and held that the psychiatric evidence supported a finding that there was a low risk that Evans would re-offend and concluded he had learned his lesson. The LSUC appealed this decision to the Ontario Superior Court of Justice.

The Court found that the Appeal Panel correctly held that there was jurisdiction to impose conditions on a person whose membership was restored under section 31(3) of the Law Society Act, R.S.O. 1990, c. L8. The failure of the Hearing Panel to appreciate that conditions could be attached to the restoration of the licence compromised the reliability of its ultimate conclusion that restoring Evans’ licence was not in the public interest. The Court further agreed with the Appeal Panel that the simple civil standard of the balance of probability applied. The finding of the Appeal Panel that the Hearing Panel’s error as to the standard of proof undermined its decision to such an extent that its conclusions could not stand was reasonable. The Court noted that the evidential standard of “clear and convincing proof based on cogent evidence” often referred to as the “Bernstein” standard, based on the landmark case of Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 (Ont.Div.Ct.), applied in the context of professional discipline proceedings and related to the quality of evidence required of the prosecution in order to sustain serious allegations which would be sufficient to remove a person’s ability to earn his livelihood in his chosen profession. In this case, the Court could not see a rational basis for imposing the “Bernstein” standard to an applicant seeking restoration to the Law Society. The Court noted that the test to be met for restoration ensures the persons guilty of past misconduct are not restored without due regard to the protection of the public. However, the Court noted that there was no precedent for imposing on top of that difficult test the additional burden of meeting the test based on the enhanced “Bernstein standard”.

In the result, the LSUC’s appeal was dismissed.

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