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Representation - Disclosure. Barnwell v. Law Society of Ontario
In Barnwell v. Law Society of Ontario (Div Ct, 2025) the Divisional Court dismissed an LSO JR, here against Appeal and Hearing Panel decisions of the Law Society Tribunal that "found that the appellant engaged in professional misconduct and concluded that nothing less than revocation or permission to resign would prevent the appellant from committing similar misconduct, deciding on the latter".
Here the court considers involvement of the 'Proceedings and Authorization Committee' (PAC) [under LSA s.33], here in the context of the examination of a Tribunal disclosure motion:[23] Over the course of the discipline proceedings, there were motion decisions that then formed part of the grounds for appeal at the Appeal Division and again in this Court:...
(ii) PAC Motion: In relation to a request to stay the application as an abuse of process, the appellant moved for production of all the investigation and other materials that would have been provided to the Law Society’s Proceedings and Authorization Committee (PAC), as well as the PAC report ordering the conduct application. The applicant relied on systemic racism as the grounds for disclosure.
The panel applied the agreed test for disclosure from Law Society of Upper Canada v. James, 2017 ONLSTA 16. The panel accepted that systemic racial discrimination exists in Canadian society and in its institutions but did not agree that they should then presume impropriety in this investigation. After considering the evidence, the panel concluded that racial bias or stereotypical negative assumptions about Black people were not a factor in the investigation. ....
(ii) PAC Motion – January 2022
[93] The appellant moved for a stay due to delay and anti-Black racism amounting to an abuse of process (the Stay Motion). In connection with the Stay Motion, the appellant moved for production of all the investigation and other materials that would have been provided to the Law Society’s Proceedings and Authorization Committee (or PAC), as well as PAC’s report ordering the conduct application. The applicant relied on systemic racism in Canadian society, including the Law Society, as the grounds for disclosure.
[94] This motion arose within the specific legislative regime for PAC, which was summarized in the Hearing Panel motion decision. Under s. 33 of the Law Society Act, the PAC must authorize an application to the Tribunal. It does not conduct the investigation. If authorized, it is the Tribunal that conducted the hearing and determines whether or not there has been professional misconduct. The PAC neither gathers evidence nor decides whether a licensee has engaged in professional misconduct.
[95] Given PAC’s specific and limited role, there is no automatic right to disclosure. There is an accepted test that must be met to obtain the disclosure of the PAC documents.
[96] On the PAC motion, the appellant agreed that the applicable legal test for disclosure of PAC documents was as set out in James. Before this Court, the appellant submits that the Hearing Panel erred in their application of the James test and the Appeal Panel similarly erred in its review of the motion decision.
[97] The Appeal Panel and the Hearing Panel correctly set out the James test:(1) a licensee must provide particularized and tenable evidence of improper conduct by the Law Society in initiating the application, and,
(2) the licensee must be able to demonstrate that the PAC materials would provide arguably relevant evidence that might assist the licensee in making this claim. [98] The test is conjunctive. If either part of the test is not satisfied, the motion fails.
....
[102] The appellant also submits that the PAC memo should have been part of the required disclosure obligation of the Law Society, citing R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The Law Society does not dispute its disclosure obligations. As cited in James, at para. 32, this Court has set out that disclosure obligation by analogy to Stinchcombe: Law Society of Upper Canada v. Savone, 2016 ONSC 649 (Div. Ct.).
[103] However, as held in James, at para. 48, it is the information gathered during the investigation that must be disclosed under Stinchcombe. The analysis, comments, and opinions of investigators and counsel fall outside that obligation. This distinction is recognized by the need to establish the threshold test for disclosure of the PAC document, as set out in James and agreed to by the appellant.
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