Did the appellant “promptly and completely” reply to the Law Society of Ontario (respondent) during an investigation into the appellant’s law firm that focused on the firm’s structure and referral fee practices?

Administrative law – Decisions of administrative tribunals – Law Societies – Investigations – Judicial review – Appeals – Standard of review – Palpable and overriding error – Barristers and solicitors – Professional misconduct or conduct unbecoming

Law Society of Ontario v. Diamond, [2021] O.J. No. 2115, 2021 ONCA 255, Ontario Court of Appeal, April 22, 2021, J.M. Fairburn A.C.J.O., S.E. Pepall and L.B. Roberts JJ.A.

The respondent concluded that the appellant did not adhere to his obligations under the Rules of Professional Conduct by failing to provide a prompt and complete response to all of the requests from the Law Society. The Law Society ordered a reprimand and costs. The appeal division of the Law Society and the Divisional Court of Ontario upheld the decision, finding that the underlying conclusions were reasonable.

On appeal, the appellant argued that the extent of a response to the regulator required an assessment of the appellant’s good faith efforts. The appellant submitted that a determination into good faith efforts engaged an assessment into the appellant’s intentions and motivations.

The Court of Appeal first found that the appropriate standard of review was palpable and overriding error. The Court of Appeal held that the issue on this appeal was whether the appellant engaged in professional misconduct which was a question of mixed fact and law. Therefore, the appeal was reviewable on a standard of palpable and overriding error.

The Court of Appeal dismissed the appellant’s appeal. The Court of Appeal held that the test for failing to cooperate, which contained subjective and objective considerations, was well established and did not require modification.

On the merits of the appeal, the Court of Appeal held that the Law Society adhered to the correct legal test and concluded that the appellant did not cooperate. The Court of Appeal declined to interfere with the Law Society’s decision, holding that the conclusions were based on the correct application of the law and the available facts.

The appeal was dismissed. Costs were reduced by consent.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

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