It would take clear words from the legislature to deprive an investigator, in regard to a professional self-regulating body, of the powers necessary to carry out an investigation. In this case, the enabling statute stated that a licensee must “provide information that relates to the matters under investigation” and the court held that the plain meaning of these statutory words in their entire context and the purpose of the enabling act included that information may be collected orally.

Administrative law – Decisions of administrative tribunals – Law Societies – Investigations – Self-governing professions – Oral interview – Barristers and solicitors – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter

Wise v. Law Society of Upper Canada, [2010] O.J. No. 2158, 2010 ONSC 1937, Ontario Superior Court of Justice, May 4, 2010, L.K. Ferrier, K.E. Swinton and H.E. Sachs JJ.

The appellant appealed a decision from the Law Society Appeal Panel (the “Panel”) which held that he committed an act of professional misconduct by refusing to attend an interview by a Society investigator. The investigation arose as a result of a complaint which alleged that the appellant had participated in a fraudulent investment scheme. The appellant was notified of the investigation and interview, but did not attend.

The Panel relied on s.49.3 of the Ontario Law Society Act (the “Act”) which contemplates the collection of oral information from licensed lawyers. The appellant argued that the Act does not confer any express power to compel a person’s attendance for an oral interview, but rather the section only required information to be given (which could be given in writing).

The court confirmed that the standard of review is reasonableness. The court found that the plain meaning of the words in s. 49.3 in their entire context, including their grammatical and ordinary sense and the purpose of the Act, expressly contemplates that oral information will be collected from licensees and that the section could not be read down otherwise. Additionally, the court found that the Panel needed flexibility to discharge its public duty to investigate complaints and that restricting it to written interrogatories would restrict its ability to act in a timely, open and efficient manner.

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