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Representation - Lawyers - Misconduct. 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. . Deokaran v. Law Society of Ontario
In Deokaran v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered a JR against interlocutory orders of the Law Society Tribunal Hearing Division (LSTHD) which "suspended the applicant’s license to practice law pending her conduct hearing" and a related costs order. The case overall is illustrative of such LSO professional misconduct matters:[4] The decision of the LSTAD is not a final decision and accordingly there is no appeal available to the applicant under s. 49.38 of the Law Society Act, R.S.O. 1990, c. L.8. In the circumstances, the matter is properly before us as an application for judicial review. . R. v. Marrone
In R. v. Marrone (Ont CA, 2023) the Court of Appeal considers the fresh evidence test where the issue revolves around an allegation that "trial counsel’s representation resulted in a miscarriage of justice", here in a criminal context:[35] Where an allegation is made that trial counsel’s representation resulted in a miscarriage of justice “the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim”: R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 169-170; R. v. McDonald, 2022 ONCA 574, 416 C.C.C. (3d) 66, at para. 43. . Robson v. Law Society of Ontario
In Robson v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal reviewed LSA provisions regarding investigation of lawyer misconduct, the related administrative and court appeal route, and the extent of complaint detail that the Law Society must have before commencing an investigation:[9] Section 49.3(1) of the Law Society Act, R.S.O. 1990, c. L.8, provides that an investigation may be commenced into a member’s conduct “if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee.” The person conducting the investigation is granted certain investigatory powers where there is a “reasonable suspicion that [the] licensee being investigated … may have engaged in professional misconduct or conduct unbecoming a licensee”: Law Society Act, s. 49.3(2).
[10] The Law Society commenced an investigation pursuant to ss. 49.3(1) and (2) of the Law Society Act. Pursuant to that investigation, Mr. Robson was asked to provide financial documents and records. Despite repeated requests, a complete response was never received.
[11] The matter therefore proceeded to a hearing. Mr. Robson took the position that the Law Society had no authority to order him to produce records as it had not demonstrated that there was “reasonable suspicion” to justify its investigation and consequent requests for documentation. Mr. Robson did not testify nor did he tender any evidence in support of his position. He claims the Law Society had the onus to demonstrate that the suspicion was reasonable.
[12] The hearing panel rejected his position, holding that: (1) the complaint constituted “reasonable suspicion” and justified the commencement of an investigation; (2) the requested materials were related to the matters under investigation; and (3) Mr. Robson’s failure to provide the materials constituted professional misconduct.
[13] Notably, the panel rejected Mr. Robson’s submission that the Law Society was required to establish a reasonable suspicion using only legally admissible evidence, holding that,Requiring legally admissible evidence as the basis for a reasonable suspicion of possible misconduct would deprive the Law Society of “effective and efficient tools by which to achieve accountability among its members.”
... Complaints come in all kinds of forms. Some are sophisticated. Some are not. Inevitably, client complaints will often not comply with civil evidence requirements. A general requirement for only admissible evidence as the basis for the exercise of investigative powers would effectively frustrate the ability to investigate.
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... Assuming the decision of the designated office holder to be subject to the Statutory Powers Procedure Act, RSO 1990, c. S.22 (SPPA), s. 15(1) would allow reliance on evidence “whether or not admissible as evidence in a court.”
In any event, the Request for Powers to Investigate was marked as an exhibit without objection by Mr. Robson and without any reservation that the document was not received as evidence of the truth of its contents. [14] The Panel rejected Mr. Robson’s reliance on Law Society of Upper Canada v. Robert Boyd Statton, 2004 ONLSAP 8, at para. 59, for the proposition that “evidence” is required. The Panel distinguished this passage because it does not address whether the evidence relied upon must be admissible and on what standard.
[15] As such, the Panel concluded that a summary of a client complaint can properly be the basis on which the designated office holder can reasonably suspect that a licensee may have engaged in professional misconduct and there is no requirement that the designated office holder review the complaint.
[16] Mr. Robson appealed the Panel decision to the Law Society Tribunal Appeal Division, raising the same argument. The appeal panel found that his appeal was meritless and “there was more than sufficient evidence” for the hearing panel to conclude that the Law Society had reasonable suspicion to investigate.
[17] Mr. Robson again appealed this decision to the Divisional Court. The Divisional Court also held that the appeal was meritless as Mr. Robson “failed to identify any factual or legal errors in the Appeal Panel’s decision justifying the court’s intervention.” The Divisional Court held that,We agree with the Appeal Panel [that] the Appellant’s appeal is meritless and “there was more than sufficient evidence” to justify the hearing panel’s conclusion that the Law Society had a reasonable suspicion to exercise its investigative powers. Further we agree with the Appeal Panel that the Appellant was afforded a fair hearing and was given ample opportunity to defend the application before the hearing division. [18] He now seeks leave to appeal this same issue to this court.
[19] The Law Society is required to have information that a member may have engaged (not has engaged) in professional misconduct in order to conduct an investigation. This must be viewed in the context of the overall regulatory responsibility of the Law Society and its obligation to assure the public that the lawyers it supervises are in fact at all times acting properly.
[20] As noted by Mr. Mercer in Law Society of Upper Canada v. Rita Anne Hartmann, 2012 ONLSHP 177, at para. 45, in his comprehensive review of this issue,While there must be a proper basis for requiring lawyers to co-operate with regulatory investigations, effective regulation in the public interest would be materially impaired if lawyers were only required to co-operate when their regulator has “evidence of each essential element of the [breach], which, if believed by a [hearing panel], could result in a [finding of professional misconduct]”… It is [therefore] not surprising that the analysis required for a committal for criminal trial is different than the analysis required for authorization of investigative powers in the regulatory context. . Deokaran v. Law Society of Ontario
In Deokaran v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the test for lawyer misconduct:vii) Seventh Ground of Appeal – The Legal Test for Misconduct
[58] The Appellant’s final ground of appeal is that the Tribunal erred in evaluating whether she committed professional misconduct by failing to respond to the Law Society.
[59] All parties agree that the applicable test to determine whether a licensee has engaged in professional misconduct by failing to respond to the Society’s correspondence is that enunciated in Law Society of Upper Canada v. Ghobrial, 2014 ONLSHP 5, at para. 8:Evaluating whether a licensee committed professional misconduct by failing to respond to the Law Society is straightforward. The issue is whether the licensee was sent correspondence requesting a reply, and acted in good faith to provide a complete and prompt response. The question of whether the response was complete and prompt must be determined by the adjudicator based on all the circumstances, including how the requests were expressed and what was required in order to fulfil them. Although the investigator may set deadlines or express the view that a response was incomplete, the decision on these issues is one for the panel; merely missing a deadline does not amount to failing to provide a prompt response. [60] The Appellant submits the adjudicator misapplied the test from Ghobrial. She argues he misunderstood the task of evaluating whether delivery of the responses was “prompt” in all the circumstances, focusing instead on whether the Appellant had delivered the responses by the final June 11, 2018 deadline. Further, the adjudicator did not consider whether the Appellant made good faith attempts to provide complete responses.
[61] The Appellant relies on comments made by the adjudicator during counsel’s closing submissions to demonstrate the adjudicator’s misunderstanding of Ghobrial. In these comments the adjudicator notes that if he finds that the Appellant did not deliver the requested material on June 11, 2018, then this means that the Appellant did not deliver the material until she filed her affidavit on August 22, 2018, two days before the hearing. He indicates that previous tribunal decisions have determined that providing a partial response two days before the disciplinary hearing does not qualify as a prompt response. Taken in context, these comments do not demonstrate any misunderstanding on the part of the adjudicator.
[62] In his reasons, the adjudicator correctly summarized the test from Ghobrial, at para. 27:Evaluating whether a licensee committed professional misconduct by failing to respond to the Law Society is straightforward. The issue is whether the licensee was sent correspondence requesting a reply, and acted in good faith to provide a complete and prompt response. The question of whether the response was complete and prompt must be determined by the adjudicator based on all the circumstances, including how the requests were expressed and what was required in order to fulfill them. [63] Having concluded that the Appellant did not deliver the material to the Law Society on June 11, 2018, the adjudicator concluded that the Appellant did not reply promptly and completely to the Law Society’s request for information with respect to the two investigations.
[64] The Appeal Division rejected this ground of appeal, finding, at paras. 60-61:We find that the adjudicator properly applied the Ghobrial test. The adjudicator found, on the balance of probabilities, that the appellant’s representations about the delivery of the responding package to the Law Society were neither credible nor made in good faith. Indeed, he found that the appellant had “blatantly attempted to mislead” the adjudicator and had insinuated that the investigator was at fault.
We find that the adjudicator made no reviewable errors in this regard. The adjudicator’s finding on credibility is entirely reasonable, based on the evidence before him, on the balance of probabilities, and should be accorded deference. [65] This is not a case where the licensee missed the deadline by a few days but demonstrated good faith efforts to respond promptly. The adjudicator found that the Appellant did not provide the requested material on June 11, 2018, and only provided a partial response on the eve of the disciplinary proceeding, falsely claiming that she had delivered the material two months earlier.
[66] I agree with the Appeal Division that the adjudicator properly applied the Ghobrial test to the facts found, and this ground of appeal must be rejected.
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