The appeal by the Law Society of Upper Canada from a decision setting aside a finding of professional misconduct and the imposition of disbarment of a lawyer (“Igbinosun”) was dismissed where the Court found that the Hearing Panel had denied Igbinosun natural justice by refusing to adjourn proceedings to permit counsel to attend

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Penalties and suspensions – Hearings – Conduct of hearings – Judicial review – Procedural requirements and fairness – Natural justice – Delay – Stay of proceedings

Igbinosun v. Law Society of Upper Canada, [2009] O.J. No. 2465, Ontario Court of Appeal, June 16, 2009, K.M. Weiler, E.E. Gillese and D. Watt JJ.A.

Three sexual assault charges were filed against Igbinosun in 1999 and 2000. All three Complainants complained to The Law Society in 2001. An investigation was deferred, pending the outcome of the criminal proceedings. The criminal proceedings were stayed in 2003 for unreasonable delay. The Law Society closed its file but reopened it in 2004 at the request of the Complainants. Igbinosun retained a lawyer to represent him but the lawyer withdrew when an adjournment was denied as the lawyer had other commitments. The Hearing commenced on February 28, 2006. The Law Society presented its case but time did not permit Igbinosun to present his. Igbinosun had retained a second lawyer who then informed him he intended to withdraw. Igbinosun was made aware that he was required to participate in discussions concerning a continuation but did not participate. His lawyer accepted September 18 as a continuation date but was allowed to withdraw. Igbinosun then retained another lawyer and requested adjournment of the Hearing but was refused, despite the fact his counsel indicated he was not available to attend. The new counsel was removed but Igbinosun indicated he did not feel competent to represent himself. The Hearing proceeded the following day, in Igbinosun’s absence. He was found guilty of professional misconduct and was informed a penalty would be imposed the next day, but he failed to attend. The Hearing Panel imposed penalties of disbarment and a costs sanction. Igbinosun elected to appeal the finding and requested that the Appeal Panel stay the penalty pending the appeal. The Appeal Panel stayed the penalty but ruled that any breach of procedural fairness did not justify setting it aside. A judge of the Superior Court granted Igbinosun’s motion to stay the penalty, pending his court appeal, noting there was a serious issue of procedural fairness to be argued. The Court later set aside the Appeal Panel’s decision because Igbinosun was denied natural justice at both the hearing and penalty phases of the proceedings. It remitted the matter back to a differently-constituted panel for a full hearing, on the basis that the new panel was bound to the previous finding that the proceeding should not be stayed for undue delay. The Law Society appealed this ruling.

In reviewing the decisions of the Appeal Panel, the Ontario Court of Appeal agreed that it came to contradictory conclusions in the stay motion and the ultimate decision on the complaint without reasons. The Superior Court had identified important errors by the Panel including the fact that no consideration was given to the prejudice Igbinosun faced as a result of having to proceed unrepresented at the Hearing. There was no evidence Igbinosun had deliberately sabotaged his relationship with his second lawyer to delay the proceedings. The Hearing could have been adjourned for one day to permit Igbinosun’s third counsel to attend. The allegations against Igbinosun were very serious and the Hearing Panel clearly erred in failing to consider the consequences to Igbinosun of denying the adjournment.

In the result, The Law Society’s appeal was dismissed and the Divisional Court’s Order remitting the matter back to a newly-constituted Hearing Panel was upheld.

To stay current with the new case law and emerging legal issues in this area, subscribe here.