Administrative law – Decisions of administrative tribunals – Law Societies – Permits and licences – Barristers and solicitors – Professional misconduct – Disciplinary proceedings – Penalties and suspensions – Judicial review – Evidence – Standard of review – Reasonableness simpliciter
Kelly v. Law Society of Upper Canada,  O.J. No. 921, 2015 ONSC 886, Ontario Superior Court of Justice, February 6, 2015, H.E. Sachs, C.J. Horkins and C. Gilmore JJ.
The appellant practised law from 1982 until 2008. Between 1999 and 2006, the appellant engaged in several transactions later determined to constitute professional misconduct. In 2007, the Law Society instituted disciplinary proceedings.
Ultimately, the appellant was found to have committed misconduct including failing to communicate with clients for months on end, misrepresenting affidavits as being sworn in front of him, misconduct connected with the appellant’s personal bankruptcy, keeping inadequate records, and failing to cooperate with Law Society investigators. Findings of misappropriation and using a false name were overturned on appeal. Even without findings of misappropriation and using a false name, the Law Society Tribunal Appeal Division (the “Tribunal”) confirmed the revocation of the appellant’s licence on the basis of his knowing participation and bankruptcy fraud and the sheer number of instances of misconduct and a pattern of “reflexive dishonesty.” Before both the Law Society Hearing Panel and the Tribunal, the appellant argued his mental illness was a mitigating factor. The Tribunal determined revocation of the appellant’s licence was necessary in the context of the appellant’s reflexive dishonesty.
The appellant appealed by statutory right of appeal to the Divisional Court. The parties agreed the Tribunal’s decision on penalty was subject to review on a reasonableness standard. On appeal, the court noted a high degree of deference is owed to the remedial decisions of a professional regulatory tribunal in a disciplinary context where one of its mandates is to protect the public.
The appellant acknowledged that, because he engaged in repeated acts of dishonesty, revocation could be an appropriate penalty; therefore, there was no suggestion the Tribunal erred in principle in imposing a penalty that was outside the range of appropriate penalties in the circumstances. On that basis, the focus of the appeal was on whether the Tribunal unreasonably dealt with the evidence regarding the appellant’s mental illness and failed to give appropriate weight to that evidence in relation to whether the appellant would reoffend.
The Divisional Court held revocation of the appellant’s licence was a reasonable penalty. The court concluded the Tribunal reasonably held the appellant’s explanation for his misconduct did not go so far as to make it obvious to the public and the profession that his mental illness explained why he was dishonest. First, many people can suffer from mental illness without reacting to that mental illness by engaging in repeated acts of dishonesty. Second, and significantly, the appellant refused to acknowledge that he engaged in what the Tribunal found to be serious acts of dishonesty. In those circumstances, the public and the profession could not be satisfied the appellant really understood what a dishonest act is such that he would not engage in dishonest acts in the future.
The Divisional Court dismissed the appeal by Appeal Book endorsement.
This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
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