Legal Profession Regulation: Difference between revisions

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{{CanLIIRC|Chiang (Re)|jrmqr|2014 LSBC 28 (CanLII)}}{{atL|jrmqr|14}}
{{CanLIIRC|Chiang (Re)|jrmqr|2014 LSBC 28 (CanLII)}}{{atL|jrmqr|14}}
</ref>
</ref>
Even where the member is not practicing law, the public, profession and complainants expect that matters will be "dealt with in a timely way."<ref>
{{CanLIIRC|Law Society of Upper Canada v Abrahams|g6mzv|2014 ONLSTH 64 (CanLII)}}{{atL|g6mzv|23}}
</ref>
The need for an expeditious hearing must be balance with the paramount right to a fair hearing.<ref>
{{supra1|Chiang (Re)}}{{atL|jrmqr|20}}<Br>
{{CanLIIRC|Howatt v. College of Physicians and Surgeons of Ontario|7bdd|2003 CanLII 29563 (ON SCDC)}}{{atL|7bdd|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. ")
</ref>
It is important to the effective administration of a tribunal to minimize the length and number of adjournments.<ref>
{{ibid1|Abrahams}}{{atL|g6mzv|24}}
</ref>
; Factors
; Factors
There are factors to consider for an adjournment:<Ref>
There are factors to consider for an adjournment:<Ref>
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see also: {{CanLIIRC|Yune v. Royal College of Dental Surgeons of Ontario|1lrk8|2005 CanLII 36460 (ON SCDC)}}, {{CanLIIRC|Kalin v. Ontario College of Teachers|1kw63|2005 CanLII 18286 (ON SCDC)}}
see also: {{CanLIIRC|Yune v. Royal College of Dental Surgeons of Ontario|1lrk8|2005 CanLII 36460 (ON SCDC)}}, {{CanLIIRC|Kalin v. Ontario College of Teachers|1kw63|2005 CanLII 18286 (ON SCDC)}}


Even where the member is not practicing law, the public, profession and complainants expect that matters will be "dealt with in a timely way."<ref>
;Last minute adjournments
{{CanLIIRC|Law Society of Upper Canada v Abrahams|g6mzv|2014 ONLSTH 64 (CanLII)}}{{atL|g6mzv|23}}
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.<ref>
{{supra1|Abrahams}} at para 24
</ref>
</ref>


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# the nature of the other proceedings.
# the nature of the other proceedings.


{{reflist|2}}
===Withdraw of Admissions===
Under limited circumstances, a party may withdraw agreement of facts.<ref>
Law Society of Upper Canada v. Abrahams, 2014 ONLSTH 64
Law Society of Upper Canada v Fitz Gibbon, 2015 ONLSTH 130
Law Society of Ontario v Phukela, 2022 ONLSTH 110
Andriuk v Merrill Lynch Canada Inc., 2011 ABQB 59
</ref>
The factors to consider on a request to withdraw from an agreement consist of:<ref>
{{CanLIIRC|Law Society of Upper Canada v Abrahams|g6mzv|2014 ONLSTH 64 (CanLII)}}
</ref>
# The reasons for the request to withdraw the admissions.
# The reasons why a response or request for an extension was not made within the time period set out in the Rules.
# The length of time since the Request to Admit was filed and the length of time until the hearing.
# Any preparation that has been done, based on the deemed admissions.
# Previous adjournments or other delay in the process.
# Specific case management directions that have been made.
# The effect of the deemed admissions and their withdrawal on the hearing process and on the interests of the parties.
{{reflist|2}}
{{reflist|2}}


Revision as of 16:11, 15 February 2024

General Principles

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

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.[1]

  1. ↑ 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)

Summons of Witnesses

There is a prima facie right to examine witnesses.[1]

  1. ↑ 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]

Factors

There are factors to consider for an adjournment:[5]

  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 Baker (Re), 2023 CanLII 98517 (NL LS), 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)

In Ontario, the assessment of an adjournment should include: [6]

  • 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.[7]

Parallel Proceedings

Where there is a request to delay or stay the proceedings pending the outcome of other litigation, the court should consider:[8]

  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
  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. ")
  4. ↑ Abrahams, ibid., at para 24
  5. ↑ 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):...")
  6. ↑ 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
  7. ↑ Abrahams, supra at para 24
  8. ↑ Law Society of Ontario v Hutton, 2021 ONLSTA 23 (CanLII)}}, at para 38

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 Law Society of Upper Canada v Fitz Gibbon, 2015 ONLSTH 130 Law Society of Ontario v Phukela, 2022 ONLSTH 110 Andriuk v Merrill Lynch Canada Inc., 2011 ABQB 59
  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."

Evidence

Rule 21.06 of the Rules of Practice and Procedure permits hearsay on interlocutory suspensions.[2]

  1. ↑ Law Society of Upper Canada v. Warren Augustine Lyon, 2014 ONLSHP 1 (CanLII), at para 29, <https://canlii.ca/t/g2ng5#par29>, retrieved on 2024-02-14
  2. ↑ 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), <https://canlii.ca/t/gg39b
  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)

Sentencing

See Also

Databases
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