Legal Profession Regulation

From Criminal Law Notebook

General Principles

Purpose of Regulation

The purpose of regulating the conduct of members is to protect the public interest and maintain the integrity of the profession.[1]

A self-regulated profession will have characteristics such as control over who can work in the profession, the conditions under which they can work, and enforcing behaviour of members.[2]

Professional self-regulation is to ensure that the public interests are protected from interference from political and government action.[3] It also recognizes that members are the best assessors of other members' conduct.[4]

Jurisdiction

Unless otherwise stated by statute, a self-governing body loses jurisdiction over a person once they stop being a member.[5]

Governing Rules

Legislation The regulation of lawyers is a matter in the provincial domain. The legislation for each province is as follows:

Codes of Conduct

Offences

Procedure

Where procedures are not set by statute, regulations, or precedent, a Tribunal may adopt "by analogy" rules prescribed from a criminal law context.[6]

  1. Connolly v. Law Society of Newfoundland and Labrador, 2011 NLTD 152 (CanLII)
    Broers v. Real Estate Council of Alberta, 2010 ABQB 497 (CanLII), at para 43
  2. Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 SCR 869 at para 40
  3. Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 SCR 869 at para 42, see also para 43 and 46
  4. Pearlman, ibid.
    Law Society of Manitoba v. Savino, 1983 CanLII 2995 (MB CA)
  5. Rivard v. Alberta Dental Hygienists' Association, 2000 ABCA 212 (CanLII)
  6. Law Society of Ontario v. Odeleye, 2019 ONLSTH 42 (CanLII), at para 21 ("The Tribunal has adopted by analogy the rules that are prescribed in the criminal law context.")
    Law Society of Upper Canada v. Watson, 2012 ONLSHP 174 (CanLII)
    Law Society of Upper Canada v. Talarico, 2012 ONLSHP 59 (CanLII)
    Law Society of Upper Canada v. Resetar, 2015 ONLSTH 103 (CanLII)

Panel Rules

Procedural Fairness

Fairness can be violated where there are inadequate particulars of the allegations provided to the accused. This would includes particulars that "deprive" the member of hte facts alleged that constitutes misconduct and deprives the member of "knowledge of his case to meet."[1]

Fairness will be satisfied where the member had a "fair opportunity to response to the substance of the allegations."[2]

It is not necessary that all particulars be proven. It is only necessary that the citation/charges be proven on the evidence as a whole.[3]

  1. Law Society of Alberta v Heming, 2020 ABLS 15 (CanLII), at para 35
    Hesje v Law Society of Saskatchewan, 2015 SKCA 2 (CanLII), at para 51 ("In short, procedural fairness will only be violated by inadequate particulars if the member is deprived of knowledge of the facts alleged to constitute misconduct, and is therefore deprived of knowledge of his case to meet.")
    Stevens and Law Society of Upper Canada (1979), 1979 CanLII 1749 (ON SC), 55 OR (2d) 405 (H Ct J) at 409, Cory J. ("… A solicitor faced with … an allegation [of professional misconduct] is entitled to and should receive the particulars that form the basis of the allegation against him. … [t]he charges brought against a professional person by his governing body should not, in most cases, be approached as though they were counts in an indictment alleging that he committed an offence or offences contrary to the Criminal Code. …")
  2. Law Society of Upper Canada v. Roy Francis Dmello, 2013 ONLSAP 5 (CanLII), at para 108
    Heming, supra, at para 36
  3. Heming, supra, at para 37

Duty of Fairness and Natural Justice

A tribunal is subject to a duty of fairness. This duty can include:[1]

  • Notice of the nature of allegations;
  • disclosure to prepare a response;
  • opportunity to provide a response;
  • notice of time and place of hearing;
  • hearing before an unbiased tribunal;
  • adjournment to deal with hearing;
  • following legitimate expectation;
  • exclusion of witnesses before testifying;
  • right to cross-examination;
  • decision without unreasonable delay;
  • reason for decision.

The "nature and extent" of the duty can vary on the specific context of the case.[2]

Reasonable Expectations

The doctrine of "legitimate expectations" requires that a tribunal follow the procedure it has previously acknowledged.[3] Only reasonable expectations that are "clear, unambiguous and unqualified" are binding.[4]

Legitimate expectations is part of natural justice and procedural fairness.[5]

The accepted elements of reasonable expectations consist of:[6]

  1. A promise was made by a Minister or other public authority in the exercise of a discretionary promise;
  2. The promise was procedural in nature and not substantive;
  3. The promise was to be clear, unambiguous and unqualified;
  4. There was reliance on the promise;
  5. The reliance on the promise was to the detriment of the person asserting a legitimate expectation; and
  6. The promise was not in conflict with a statutory duty.
  1. Bryan Salte, The Law of Professional Regulation
    Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] 1 SCR 249 at para 75 ("The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority...Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule. ")
  2. Moreau-Bérubé, supra at para 75
  3. Agraira v Canada, 2013 SCCC 36 at paras 94 to 97
  4. Agraira, ibid. at para 95
    MacDoanld v Alberta Health Services, 2013 ABQB 404 at para 71
  5. MacDoanld v Alberta Health Services, 2013 ABQB 404 at para 68
  6. Worthington v Canada (Minister of Citizenship and Immigration), 2008 FC 626 at para 48

Duties of the Respondent

Members of a self-regulated profession are obliged to co-operate with the society.[1]

  1. Law Society of Ontario v Ryu, 2018 ONLSTH 123 (CanLII), at para 16 ("Every licensee is obliged to co-operate with the Law Society, and to respond promptly and completely when requested to do so. This is part of the responsibility of belonging to an independent, self-regulating body. The credibility of the legal professions, and the Law Society as their regulator, depends upon the Law Society being able to investigate complaints and to take appropriate action in a timely way.")
    Law Society of Ontario v. Holmes, 2020 ONLSTH 133 (CanLII), at para 20, <https://canlii.ca/t/jbpv5#par20>, retrieved on 2024-03-04

Disclosure

The law society has an ongoing duty to disclosure evidence relevant ot the allegations.[1] However, there is some suggestion that a "stinchcombe level of disclosure" is not necessary.[2]

Oral Hearing

An oral hearing that meets the requirements of fairness must look at nature of the decision and credibility of witnesses.

There is no absolute right to cross-examine a witness before a tribunal.[3]

Some factors to consider include:[4]

  1. serious allegation;
  2. decision was "final and decisive"
  3. decision "important to the applicant's interest"
  4. no established process for investigation;
  5. clear issue of credibility;
  6. lack of "meaningful opportunity to challenge the evidence and cridbiilty" of the witnesses or and provide meaningful opportunity to respond.
  1. LSUP v Talarico, 2012 ONLSHP 59
  2. Litchfeidl v College of physicalns and Surgeons of ALberta 2005 ABQB 962
    contra Sheriff v Canada (AG), 2006 FCA 139
  3. Kuntz v. College of Physicians & Surgeons of B.C., 1987 CanLII 2844 (BC SC)
    Abrahams v. College of Physicians and Surgeons of British Columbia, 2006 BCSC 696 (CanLII)
    Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police) (C.A.), 1998 CanLII 9041 (FCA)
    Riad v Ontario, 2012 ONSC 2728 (CanLII)
  4. Kaberwal v Saskatchewan (Economy), 2013 SKQB 244 (CanLII)

Reasonable Apprehension of Bias

Circulation of a decision amongst the panel prior to the hearing and assessment can amount to a form of reasonable apprehension of bias.[1]

Excessive Questioning

The judge may ask for clarification and application but should not question in a counsel-like role.[2]

Excessive intervention must be considered as a whole.[3] It is not critical to determine whether the intervention was "well motivated" or well intentioned.[4]

Appropriate questioning can include:[5]

  1. questioned "confine[d] ... to his own responsibilities";
  2. "clear up ambiguities and call a witness to order";
  3. to "explore some matter which the witnesses’ answers have left vague";
  4. to "put questions which should have been asked by counsel in order to bring out some relevant matter".

Questioning should be put to the witness after counsel have completed their questioning.[6]

Summons of Witnesses

There is a prima facie right to examine witnesses.[7]

  1. Kabongo v Canada, 2011 FC 1106 (CanLII) at para 35, 42, 46
  2. NCJ Educational Srices v Canada, 2009 FCA 131 (CanLII), at para 39
  3. NCJ, at para 39
  4. NCJ, at para 39
  5. R v Stucky, 2009 ONCA 151 (CanLII), at para 63
  6. Stucky, supra, at para 64
  7. Law Society of Ontario v. Isaac, 2018 ONLSTH 72 (CanLII), at para 11

Adjournments

The burden is upon the party seeking an adjournment.[1]

Even where the member is not practicing law, the public, profession and complainants expect that matters will be "dealt with in a timely way."[2] The need for an expeditious hearing must be balance with the paramount right to a fair hearing.[3]

It is important to the effective administration of a tribunal to minimize the length and number of adjournments.[4]

An adjournment that is unfair will be quashed.[5]

Factors

There are factors to consider for an adjournment:[6]

  1. the purpose of the adjournment (relevance to the proceedings, necessary for a fair hearing);
  2. has the participant seeking the adjournment acted in good faith and reasonably in attempting to avoid the necessity of adjourning;
  3. the position of other participants and the reasonableness of their actions;
  4. the seriousness of the harm resulting if the adjournment is not granted;
  5. the seriousness of the harm resulting if the adjournment is granted (to the other participants, etc., including the length of adjournment required);
  6. is there any way to compensate for any harm identified;
  7. how many adjournments has the party requesting the adjournment been granted in the past; and
  8. was the hearing to be peremptory, and if so, were the parties consulted in selecting the date and were they advised of its peremptory nature.

see also LSO v Oti, 2023 ONLSTH 141 (CanLII), LSO v Lulic, 2023 ONLSTH 159 (CanLII), Re Guo, 2023 LSBC 41 (CanLII), Macdonald v. Institute of Chartered Accountants of British Columbia, 2010 BCCA 492 (CanLII)

Other considerations include:[7]

  • account the public interest and the interest of the tribunal itself in having matters move expeditiously;
  • reasons for the request
  • the implications of not granting the request
  • whether the public interest may be adequately protected by alternate means;
  • whether there have been previous adjournments.

As well as:[8]

  1. proceeding may have a significant impact on the licensee and this is an important factor;
  2. The public protection mandate of the Tribunal requires that the administration of justice move forward in a timely and expeditious manner. This is true even though the licensee is not practising law; the public, the profession and complainants expect that matters before the Law Society Tribunal will be dealt with in a timely way.
  3. Minimizing adjournments is also important to effective administration of the Tribunal. All adjudicators at the Law Society Tribunal, other than the Chair, are part-time. When a hearing is scheduled, they set aside time and prepare for the hearing when materials are filed in advance. When a hearing is adjourned at the last minute, their time often cannot be used for other matters and a new panel must be found for another date.
  4. counsel for the Law Society, witnesses and the public may have prepared for a hearing and set aside time to be there. Adjournments, particularly at the last minute, often lead to cost and inconvenience and impede the effective administration of justice at the Tribunal.
  5. "Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered."

In Ontario, the assessment of an adjournment should include: [9]

  • Procedural Considerations:
    • lack of compliance with prior court orders;
    • previous adjournments that have been granted;
    • previous preemptory hearings;
    • desirability of having the matter decided;
    • evidence of the applicant seeking to manufacture delay;
    • honest attempt to seek counsel;
    • seriousness of the allegations;
    • whether the applicant is prejudiced by failure to delay the case;
    • timeliness of the request;
    • reasons for being unable to proceed;
    • length of time being requested.

see also: Yune v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 36460 (ON SCDC), Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ON SCDC)

Last minute adjournments

Adjournments at the last minute there is a cost on the aministration of the tribunal as it results in lost time for the panel members and others to prepare and set aside time.[10]

Parallel Proceedings

Where there is a request to delay or stay the proceedings pending the outcome of other litigation, the court should consider:[11]

  1. degree of overlap;
  2. seriousness and nature of the allegations;
  3. whether the licensee is actively practising law;
  4. how soon the other proceeding is to be heard or determined; and
  5. the nature of the other proceedings.
  1. Chiang (Re), 2014 LSBC 28 (CanLII), at para 14
    Template:CAnLIIRC, at para 35
  2. Law Society of Upper Canada v Abrahams, 2014 ONLSTH 64 (CanLII), at para 23
  3. Chiang (Re), supra, at para 20
    Howatt v. College of Physicians and Surgeons of Ontario, 2003 CanLII 29563 (ON SCDC), at para 31 ("There is no doubt that the right to an adjournment before an administrative tribunal, including a disciplinary body, is not an absolute right. In each case, whether or not the adjournment should be granted must be considered in the light of the circumstances, having regard to the right of the applicant to a fair hearing weighed against the obvious desirability of a speedy and expeditious hearing into charges of professional misconduct. When balancing these two factors, the right of the applicant to a fair hearing must be the paramount consideration. ")
    Howatt v. College of Physicians and Surgeons of Ontario, 2003 CanLII 29563 (ON SCDC), at para 31
  4. Abrahams, ibid., at para 24
  5. Yune at para 9
  6. De Lange (Re), 2022 LSBC 35 (CanLII), at para 14 ("In both Welder and in Law Society of BC v. Hart, 2019 LSBC 39 the panel cited the following non-exhaustive list of factors to be considered for adjournment motions as set out in Macaulay & Sprague, Practice and Procedure Before Administrative Tribunals, (Toronto: Thomson Carswell, 2004):...")
    De Lange (Re), 2022 LSBC 35 (CanLII), at para 14
    Hart (Re), 2019 LSBC 39 (CanLII), at para 13
  7. Yune v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 36460 (ON SCDC)
    Baker (Re), 2023 CanLII 98517 (NL LS)
  8. Chiang, 2014 LSBC 43 (CanLII), at paras 5 and 6
  9. R v Igbinosun v Law Society of Upper Canada, 2009 ONCA 484 (CanLII), at para 37 ("A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.")
    Law Society of Upper Canada v. Abrahams, 2014 ONLSTH 64 (CanLII), at para 21
  10. Abrahams, supra at para 24
  11. Law Society of Ontario v Hutton, 2021 ONLSTA 23 (CanLII)}}, at para 38

Self-Represented

A judge should provide a self-represented with an understanding of the nature of the trial process, their role in it, the manner in which they may participate in it.[1]

The sufficient of assistance to ensure a fair trial will dpened on teh case, including the nature of the charges, the allegations, teh background and sophistication of the accused and the manner in which the trial unfolds.[2]


Explanation to the respondent

Most aspects of the proceeding do not need to be explained.[3]

At a minimum, there should be at least some explanation of the terms as they are appropriate to the case:[4]

  • the right to cross-examine witnesses
  • the right to call witnesses in his defence
  • the arguments in his defence should be supported by evidence
  • the right to make closing arguments
  • and provide assistance with questioning if needed
  • and prevent improper Crown questioning

No tactical advice should be given, including advice whether to present evidence.[5]

  1. R v Rice, 2011 ONSC 5532 (CanLII)
  2. Rice at para 5
  3. Saeed, 2010 ONCJ 251 (CanLII)
  4. Saeed, ibid.
  5. Kelly v Nova Scotia (Police Commission), 2006 NSCA 27 (CanLII)

Withdraw of Admissions

Under limited circumstances, a party may withdraw agreement of facts.[1]

The factors to consider on a request to withdraw from an agreement consist of:[2]

  1. The reasons for the request to withdraw the admissions.
  2. The reasons why a response or request for an extension was not made within the time period set out in the Rules.
  3. The length of time since the Request to Admit was filed and the length of time until the hearing.
  4. Any preparation that has been done, based on the deemed admissions.
  5. Previous adjournments or other delay in the process.
  6. Specific case management directions that have been made.
  7. The effect of the deemed admissions and their withdrawal on the hearing process and on the interests of the parties.
  1. Law Society of Upper Canada v. Abrahams, 2014 ONLSTH 64 (CanLII) Law Society of Upper Canada v Fitz Gibbon, 2015 ONLSTH 130 (CanLII) Law Society of Ontario v Phukela, 2022 ONLSTH 110 (CanLII) Andriuk v Merrill Lynch Canada Inc., 2011 ABQB 59 (CanLII)
  2. Law Society of Upper Canada v Abrahams, 2014 ONLSTH 64 (CanLII)

Proceeding Without Respondent

The respondent has a right to notice of a hearing. However, absent statutory obligations, there is no right be present at a determination hearing.

Reasons of health will normally need to be substantiated and connected with their inability to participate.[1]

  1. R v LSO v Oti, 2023 ONLSTH 141 (CanLII)

Ordering a Medical Examination

In Ontario, s. 39(1) of the LSA permits ordering of a medical examination. Before an assessment can be made there must be:[1]

  1. "that there are reasonable grounds to believe that the licensee might be or might have been incapacitated within the meaning of the Law Society Act; and"
  2. "that the proposed examination will provide significant additional assistance, given the evidence available, in deciding the issues in the case."
  1. Law Society of Upper Canada v. Warren Augustine Lyon, 2014 ONLSHP 1 (CanLII), at para 29

Evidence

Rule 21.06 of the Rules of Practice and Procedure permits hearsay on interlocutory suspensions.[1]

  1. Law Society of Upper Canada v. Ejidike, 2016 ONLSTA 18 (CanLII), at para 48

Incapacity

In Ontario, s. 37 of the LSO provides that a member is incapacitated where he is unable to meet his obligations for reason of one or more enumerated circumstances.[1]

37 (1) A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.

Incapacity must be established on a balance of probabilities.[2]

Revisiting Decisions

Once a panel makes a finding of conviction, the panel cannot revisit the determination as they are "functus officio."[3]

  1. Law Society of Ontario v. Fiorillo, 2024 ONLSTH 17 (CanLII), at paras 63 to 67
  2. Law Society of Upper Canada v. Lyon, 2015 ONLSTH 15 (CanLII)
  3. Law Society of Upper Canada v. Charles Douglas Sutherland, 2011 ONLSHP 112 (CanLII)

Production of Records

A panel may order disclosure of records held by third parties. The requirements to make such an order, which were adopted from the criminal law, consist of:[1]

  1. first, the panel should ask whether the records sought by the licensee are “likely relevant” to the matters at issue in the conduct application, and production is necessary in the interests of justice;
  2. if that requirement is met, the panel should order the third party to disclose those records to it;
  3. the panel must then decide whether the documents should be produced to the licensee. To do so, the panel must balance the licensee’s right to respond to the conduct allegations against the privacy interests of the third party.
  1. LSO v Campisi and Murray, 2023 ONLSTH 137 (CanLII), at para 31
    Law Society of Ontario v Odeleye, 2019 ONLSTH 42 (CanLII)

Delay

In the admininstratvie context, the following principles apply:[1]

  1. The administrative process must be conducted in a manner that is entirely consistent with the principles of natural justice and procedural fairness [para. 105];
  2. Unreasonable delay is a possible basis upon which to raise issues of natural justice, procedural fairness, abuse of process and abuse of discretion [para 106];
  3. Delay, without more, will not warrant a stay of proceedings as an abuse of process [para. 101, 121];
  4. Where administrative delay impairs a party's ability to answer the complaint – as examples, where memories have faded, essential witnesses have died or are unavailable, or evidence has been lost – the delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy [para. 102];
  5. Unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Those circumstances may include where inordinate delay has directly caused significant psychological harm or attached a stigma to a person's reputation, such that the administrative process would be brought into disrepute. However, "few lengthy delays will meet this threshold". Further, the "respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings". The process must be "tainted to such a degree that it amounts to one of the clearest cases". The proceedings must be "unfair to the point that they are contrary to the interests of justice". "Cases of this nature will be extremely rare." [para. 115, 120 and 121];
  6. The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community's sense of fairness would be offended by the delay [para. 122];
  7. The determination of whether the delay is unreasonable is, in part, a relative exercise, comparing the length of time for the impugned proceeding against the length of time normally taken for processing analogous cases in the same jurisdiction and other Canadian jurisdictions [para. 129 and 130];
  8. There must be proof of "significant prejudice" which results from the unacceptable delay. [para. 101]

The applicant must show that there was "damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted".[2]

This will also account for the "common sense of fair play and decency."[3]

  1. Law Society of Alberta v. Odishaw, 2011 ABLS 28 (CanLII), at para 67
  2. Odishaw at para 68
  3. Odishaw at para 69
    Nisbett v. Manitoba (Human Rights Commission), 1993 CanLII 3366 (MB CA) at 757 (DLR)

Sentencing

See Also

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