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Representation - Lawyers - Good Character. Law Society of Ontario v. Colangelo
In Law Society of Ontario v. Colangelo (Div Court, 2024) the Divisional Court dismissed an LSO-brought JR on the LSO-licensing issue of 'good character', here for someone "who is serving a criminal sentence":[1] The Law Society of Ontario (the “LSO”) argues on this judicial review that a lawyer or paralegal who seeks a licence to practice from the LSO and who is serving a criminal sentence cannot, by definition, be a person of good character. If someone is not of good character, they cannot obtain a licence to practice law or become a paralegal.
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[4] The hearing division of the LSO decided that the Applicant was of good character and granted her request for a licence, conditional on the completion of her sentence. The LSO appealed the decision to the appeal division of the LSO (The Tribunal). The Tribunal denied the appeal and the LSO filed this application for judicial review.
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[20] The LSO appealed the decision of the hearing division. The appeal hearing was held on April 25, 2023, and on October 12, 2023, the Tribunal dismissed the LSO appeal and concluded that there was sufficient evidence before the hearing division to support the determination that the Respondent was of good character. The Tribunal concluded that there was no absolute bar in the applicable statutory regime or jurisprudence to a finding that an Applicant serving a custodial sentence is of good character. As noted by the Tribunal at para. 57 of its reasons, the Legislature could impose such a bar by amending the Act. Alternatively, Convocation of the LSO could create an absolute prohibition on anyone serving a criminal sentence being found to be “of good character” by amending its’ By-Laws.
[21] The main issue on this judicial review is whether the Tribunal’s decision was unreasonable because it upheld the decision of the hearing division which granted a licence to an Applicant serving a custodial sentence, thereby failing to give due weight to the public interest. In making its’ submission in this regard, counsel for the LSO and counsel for the Respondent both agree that there is no case law that stands for the proposition that an Applicant seeking a determination of good character cannot succeed where he or she is presently serving a sentence imposed by a criminal court.
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Analysis
[43] Criminal offences involving children naturally and quite rightly attract a high degree of revulsion. Given the nature of the Respondent’s offences involving the Respondent, some might argue that it should have been a simple task for the hearing division and/or the Tribunal to have rejected her licensing application.
[44] A good character hearing, however, requires the adjudicators to consider the evidence and the applicable jurisprudence. In this case, the hearing division heard the evidence as it relates to the Respondent’s good character and applied the well-known tests set forth in Armstrong. The hearing division and the Tribunal both considered and rejected the Law Society’s argument that even where an Applicant can be found to be of good character as a matter of public policy, an Applicant cannot be found to be of good character while they are still serving a criminal sentence.
[45] The Law Society argues that the hearing panel and the Tribunal both erred in failing to consider the decision in Valiente v. Law Society of Ontario, 2018 ONLSTH 160, where the Tribunal dismissed a licensing application because among other things the Applicant was still on probation arising out of a criminal conviction.
[46] Having reviewed Valiente, I agree with the Tribunal that the facts in Valiente are distinguishable from the facts before this court. In that regard para. 39 of Valiente is worth emphasizing where the Court stated:In Valiente, above, the hearing panel based its decision to deny Ms. Valiente’s licence application on her failure to pay victim surcharges and a civil judgment stemming from the misconduct. Ms. Valiente had failed to disclose her criminal record in circumstances that were relevant, including to her paralegal placement principle and to the church where she did volunteer work. The panel found that Ms. Valiente may not have had the courage to admit her past, even when circumstances required it. The panel was not satisfied that she had the moral fiber to do what was right in uncomfortable situations. [47] Factually, as the Tribunal found, Valiente was distinguishable from the case at bar. As noted in the Tribunal’s decision, the Respondent did not have unpaid fines or judgments. More importantly, there was no evidence that the Respondent did not have “the moral fiber to do what is right in uncomfortable situations.” The Respondent had advised the minister at her church of what had happened and had provided undisputed evidence that she had disclosed her criminal record to all prospective employers. Further, the Tribunal found no “palpable and overriding error” that the Respondent’s use of her maiden name on her licencing application was “not incompatible with a finding of good character” (para. 60). In summary as it relates to Valiente the Tribunal at para. 40 of its reasons concluded that:The concerns that led the hearing panel in Valiente to deny the licencing application are not present in Ms. Colangelo’s case. [48] In my view there is nothing unreasonable in the decisions of either the hearing division or the Tribunal based on the evidence and the agreed statement of facts that led to the conclusion that the Respondent was of good character. I make this finding despite the fact the Respondent was still serving a conditional sentence accompanied by a probation order and other ancillary orders. I agree with the conclusion of the hearing division and the Tribunal that there was nothing in the governing statutory regime or jurisprudence that prohibited a finding that a person was of good character merely because they were serving a criminal sentence.
[49] The Tribunal found that the task of the hearing division was to determine whether the Respondent was a person of good character, considering the factors set forth in Armstrong and the jurisprudence involving other applications for a determination of good character. In that regard I agree with the reasons of the Tribunal in terms of how a good character assessment should proceed as set forth in para. 25 as follows:“The hearing panel was required to assess Ms. Colangelo’s current character at the time of the hearing and not her prior character. The Armstrong factors are useful in addressing cases involving past misconduct, but these factors are not a code to be applied mechanically. It is the ultimate question of current good character that must be answered. [50] There is a strong public interest in ensuring that only persons of good character are licensed to provide legal services in this Province. In my view, the public interest, including the public interest in rehabilitation is subsumed within the Armstrong factors. As put by the Tribunal at para. 53:Our criminal justice system is not premised just on denunciation and punishment but also on correction and rehabilitation […] Requiring demonstration of current good character, as we have done, protects the public. Both support public confidence in a fair and just legal system. (emphasis added by the Tribunal) [51] This case presented novel features in the hearing division – specifically whether or not someone could be found to be of good character who had not yet completed her criminal sentence. The hearing division dealt with this issue by imposing a condition. The Tribunal did not accept the LSO’s submission that this undermined the hearing division’s finding that the Respondent was of good character. The following conclusions of the Tribunal at paras. 39 and 44 of its reasons were entirely reasonable:[39] We do not accept the Law Society’s categorical proposition that a person who is serving a sentence, is about to be subject to probation, and is required to comply with the SOIRA and register her information in the NSOR, cannot be of good character.
[44] The hearing panel was fully aware of Ms. Colangelo’s sentence and pending probation and it found Ms. Colangelo’s evidence of her rehabilitation and remorse genuine, and that of her social worker compelling. As stated above, the hearing panel carefully evaluated the evidence, including the testimony of Ms. Colangelo, applied the Armstrong factors, and found that Ms. Colangelo is remorseful and rehabilitated. There was sufficient evidence before it on which to make those findings and, ultimately, to conclude that she is of good character. We find no error in the hearing panel making these findings even though Ms. Colangelo was still serving her sentence. [52] The LSO wants to preclude anyone still serving a criminal sentence from applying to the LSO for a determination that they are of good character and thus entitled to be licensed to practice as a lawyer or paralegal. The task of this Court is to determine the reasonableness of the Tribunal’s decision. For the reasons set forth above we see nothing unreasonable in the decision. It is open to the LSO to amend its by-laws to include a provision that a good character application cannot succeed where the Applicant is still serving all or part of a criminal sentence. It is not the role of this court to rewrite the LSO bylaws. . Law Society of Ontario v. A.A.
In Law Society of Ontario v. A.A. (Div Court, 2024) the Divisional Court allowed a stay pending JR motion (heard on the RJR test), where the JR was of the Law Society Tribunal (Appeal Division)'s dismissal of an appeal of the Law Society Tribunal's finding that the respondent was of good character.
Here the court considers the 'good character' requirement for professional regulation:[15] The function of the Law Society is to ensure that everyone who practises law in the province meets minimum standards of competence and professional conduct: Law Society Act, R.S.O. 1990, c. L.8, s. 4.1. The Law Society is required to protect the public interest when carrying out all its functions, including its licensing function: Law Society Act, R.S.O. 1990, c. L.8, s. 4.2. The Law Society has the power to make by-laws about the licensing of individuals to practise law: Law Society Act, s. 62(.01). The Law Society has a duty to issue a license to applicants who meet the licensing requirements in the Law Society Act and by-laws. But the Law Society cannot grant a license to an applicant unless the applicant is “of good character”: Law Society Act, s. 27(2).
[16] The “good character” requirement is integral to the Law Society’s duty to protect the public interest. It ensures each licensee will adhere to the high ethical standards of the profession. It also ensures the public can be confident that any lawyer they retain will act with the utmost integrity and professionalism.
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[17] If a stay is not granted, AA will be licensed to practise law based on the Appeal Division’s decision upholding the finding that he is of good character. If, however, the Law Society succeeds on its judicial review application and that finding is overturned, the Law Society will have licensed someone who does not meet the good character requirement. In other words, AA will have been a member of the profession and permitted to provide legal services to the public even though he did not meet the statutory requirements for licensing, which would be inconsistent with the Law Society’s obligation to protect the public interest. I find this is precisely the sort of harm that cannot be remedied after the fact.
[18] I appreciate that this decision may, at first blush, appear to conflict with the unreported decision in Law Society of Ontario v. Colangelo. In that case, O’Brien J. dismissed the Law Society’s request for a stay of the Appeal Division’s decision that Ms. Colangelo was of good character pending its judicial review application. O’Brien found the Law Society had not established irreparable harm. Justice O’Brien’s endorsement was issued following a case conference and is quite brief. There are some obvious similarities between the facts of this case and Colangelo. Both applicants had engaged in sexual misconduct involving children several years before they applied to be licensed. Both were subject to a good character investigation and hearing. Both cases involved findings of good character at the Tribunal that the Law Society unsuccessfully appealed to the Appeal Division. But each case must be decided on its own facts and its own record. The condition imposed by the Law Society Tribunal on Ms. Colangelo’s license to practise as a paralegal is very different than the condition imposed in AA’s case. And the grounds raised by the Law Society are different in each case. On the record before me, I am satisfied that the public interest will be irreparably harmed if a stay of the Appeal Division’s decision is not granted.
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