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Representation - Lawyers - Freedom of Expression. Rappaport v. Law Society of Ontario
In Rappaport v. Law Society of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from an appeal denial of the Law Society Tribunal - Appeal Division, that from a finding by the Law Society Tribunal - Hearing Division that the appellant "committed professional misconduct".
Part of the complaint against the appellant were that he "failed to encourage respect for the administration of justice by filing an affidavit that contained personal attacks on McLeod J., and by maintaining the website devoted to the CJC complaint online until about seven months after the CJC notified the appellant that it had declined to investigate the complaint". In these quotes the court reviews and approves the Appeal Division's 'balancing' as required by Groia v Law Society of Upper Canada (SCC, 2018):[7] The appellant raised multiple grounds of appeal at the Appeal Division. He submitted that the penalty imposed by the Hearing Division violated his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.[1] ....
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Section 2(b) Charter Rights
[9] The appellant submitted before the Appeal Division that the Hearing Division violated his freedom of expression under s. 2(b) of the Charter by sanctioning him for adducing an affidavit that contained attacks on a judge and maintaining the website that supported the CJC complaint after the complaint had been dismissed.
[10] The Appeal Division agreed that the appellant’s s.2(b) rights were engaged by the Law Society’s disciplinary actions but rejected the submission that they were unjustifiably infringed.
[11] In this court, the appellant submits the Appeal Division erred by failing to perform the analysis required by the Supreme Court of Canada in Groia v Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772. He points to para. 120 of Groia to say the Appeal Division was required to conduct a review of his affidavit (which appended the complaint to the CJC) to determine whether the allegations were made in good faith and based upon reasonable factual and legal foundations.
[12] We disagree with the submission that the Appeal Division failed to apply Groia correctly. According to Groia, a professional misconduct finding that engages a lawyer’s expressive freedom under s. 2(b) of the Charter will only be reasonable if it reflects a proportionate balancing of the law society’s statutory objective with the lawyer’s expressive freedom. At para. 120, Groia states that “sanctioning a lawyer for good faith, reasonably based allegations that are grounded in legal error does not reflect a proportionate balancing.”
[13] The Appeal Division engaged in the very balancing Groia requires. It squarely acknowledged the importance of the appellant’s s. 2(b) rights, stating, for example at para. 32 of its reasons:Lawyers play a critical role in the administration of justice. It is imperative that they be able to speak freely about the justice system and its failings in order to hold all justice participants – including judges – accountable. [14] The Appeal Division also stated that a lawyer does not fail to encourage respect for the administration of justice merely by speaking out against the conduct of justice system participants. However, it emphasized at para. 33: “The question is how they choose to do so.”
[15] In this respect, the Appeal Division stated that limitations on a lawyer’s right to speak freely about justice system participants will be reasonable insofar as it advances the underlying objectives of transparency and accountability in the justice system.
[16] The Appeal Division noted the Law Society’s statutory mandate includes regulating the professional conduct of lawyers, including by enforcing the Rules of Professional Conduct. It went on to say that criticism of justice system participants that is, as stated in commentary to Rule 5-6-1, “petty, intemperate, or unsupported by a bona fide belief in its real merit” undermines rather than promotes the goals of transparency and accountability. It stated this type of expression lies far from the core values that underpin lawyers’ expressive rights.
[17] The Appeal Division concluded that the Hearing Division’s basis for finding professional misconduct reflected a proportionate balancing of the appellant’s Charter rights with the Law Society’s statutory mandate.
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[21] The Hearing Division’s second concern with the appellant’s expressive activity related to the website he created about his CJC complaint. The website posted documents from the family law proceedings, including the parties’ prenuptial agreement and financial statements. The Hearing Division concluded it constituted professional misconduct to maintain the website for over a year, including after the CJC notified him that it would be declining to investigate the complaint. The website landing page contained inflammatory statements against MacLeod J.
[22] The Appeal Division concluded that in the circumstances, the finding of professional misconduct reflected a reasonable balancing. It described the appellant’s expressive activity as “gratuitous,” taking into account the manner in which it was made and that it was irrelevant in the forum in which it was expressed.
[23] It was far from the core values of s. 2(b) to raise inflammatory allegations in court against a judge that were irrelevant to the issue before the court. Similarly, maintaining a website about a complaint with strongly-worded criticisms against a judge long after the CJC summarily dismissed the complaint is accurately described as gratuitous and did not promote the central values sought to be protected by s. 2(b). Overall, considering the context and content of the appellant’s allegations, it was implicit in the Appeal Division’s reasons that the appellant’s gratuitous expression did not constitute good faith, reasonably based allegations. There is no basis to interfere with the Appeal Division’s conclusions on this issue. I have concerns about the LSO sanctions insofar as they are grounded in "maintaining a website about a complaint with strongly-worded criticisms against a judge long after the CJC summarily dismissed the complaint", which the court here "accurately described as gratuitous". 'Gratuitous' here is plainly equated with bad faith motivation, but what if a third party legal writer choses to publish the same documents as an illustration of what the CJC accepts for further consideration and what it does not - for the motivation of professional and public education. This illustrates that motivation matters in such professional-expressive disputes.
. Rappaport v. Law Society Ontario
In Rappaport v. Law Society Ontario (Div Court, 2024) the Divisional Court granted a stay pending appeal, here of a decision of the Appeal Division of the Law Society Tribunal that "imposed a five-month suspension" for professional misconduct.
Here the court favourably weighs an expression Charter argument towards the stay:[9] Mr. Rappaport raised a Charter argument for the first time before the Appeal Division of the Law Society Tribunal. He argued that the disciplinary proceedings and the Hearing Division’s decision violated his rights to freedom of expression under s. 2(b) of the Charter.
[10] The Appeal Division found that Mr. Rappaport’s right to freedom of expression was engaged by the Law Society’s disciplinary action because the Hearing Division’s finding that Mr. Rappaport failed to encourage respect for the administration of justice was, in part, based on the fact that he published his complaint to the Canadian Judicial Council on a website he created and he failed to take the website down after he was told the Canadian Judicial Council was not going to investigate his complaint. The misconduct finding was also based, in part, on the fact that Mr. Rappaport filed an affidavit containing personal attacks against the judge. The Appeal Division accepted that publishing information on a website and drafting an affidavit are forms of expression and the Law Society’s disciplinary action was an infringement on his freedom of expression. Nonetheless, the Appeal Division found that it was open to the Hearing Division to conclude that Mr. Rappaport’s expression frustrated rather than promoted “the principle of accountability that underpins both Rule 5.6-1 and the right of lawyers to free expression under s. 2(b) of the Charter.”
[11] In his Notice of Appeal in this Court, Mr. Rappaport argues the Appeal Division failed to consider and apply the Supreme Court of Canada’s decision in Groia v. Law Society of Upper Canada, 2018 SCC 27. In Groia, the Supreme Court adopted a three-part test for assessing whether a lawyer’s in-court behaviour constitutes misconduct. The Supreme Court ruled that law society disciplinary panels should consider (a) what the lawyer said, (b) the manner and frequency in which it was said, and (c) the response of the presiding judge.
[12] Mr. Rappaport is right that the Appeal Division did not apply the test articulated in Groia. Whether the Appeal Division ought to have applied that test in the circumstances of Mr. Rappaport’s case is an arguable ground of appeal that is neither frivolous nor vexatious.
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