Wednesday, February 24, 2016

Divisional Court Upholds Law Society Tribunal Appeal Panel on Application of Blencoe to Penalty: Stay Decision Ripe for Appeal

     On February 10th, 2016 the Divisional Court upheld the majority decision of a Law Society Tribunal appeal panel substituting a two year suspension for the revocation of a lawyer's licence to practice law relying on Blencoe  v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307.(see Law Society of Upper Canada  v.  Abbott 2016 ONSC 641)  This is a significant decision in the context of self-regulated professions and could have some relevance to other areas including judicial misconduct proceedings.  Rather than reinventing the wheel, I will simply delineate for the readers the salient points of the Divisional Court's ruling and later add my usual commentary.

[48] In this case, the Appeal  Division was  faced  with  what it  found  to  be  a  period  of unwarranted delay that exceeded seven years, none  of  which  was  the  fault of  the  Appellant. There is no issue  that  delay  that  does  not  justify  stay  can  be  a  mitigating factor in penalty. The only issue was whether such a delay could be a factor that  turned  a penalty of revocation into one that did not involve the lawyer  leaving  the  profession.  The Appeal Division concluded that it could. It did so because it recognized that delay in the investigation and prosecution  of  serious  misconduct  could  be  just as  harmful to  the integrity  of  and  the  public’s  confidence  in  the  legal  profession  as  the  Appellant’s  continued right to  practice  law. The  Appeal  Division’s reasoning  on  this issue  was justifiable,  transparent  and  intelligible  and  the  conclusion  it  came  to  fell  within  the  “range   of possible, acceptable outcomes which  are  defensible  in  respect  of  the  facts  and  the  law.”  (Dunsmuir, at para. 47).

[49]      Under s.  49.35(2)(a) of the  Law  Society  Act  ,  R.S.O.  1990,  c.  L.8, the Appeal Division had the  jurisdiction  to  decide  the  issue  of  penalty  itself  rather  than  sending  the  matter back to the  Hearing  Division.  It  decided  to  exercise  this  jurisdiction  because  of the  length of time   that  the case had already  been outstanding.

[50]     The  Appeal  Division’s  decision  as  to  the  appropriate  penalty  is  entitled  to  deference  from this  court  and is reviewable on a standard  of reasonableness.

[51]    In deciding to impose the penalty  of  a  two-year  suspension  rather  than  revocation,  the  Appeal Division took  into account  the  inordinate  and  unacceptable  delay  that had  occurred in this case; the fact  that  the  Appellant  was  not  responsible  for  any of this  delay and cooperated with the Law Society at all  times;  the  fact  that  the  Appellant  had  not  waived any of the delay; the fact that apart from the four-month period during which the transactions at issue occurred,  the  Appellant  had  practiced  law  without  incident  since  his  call to the bar in 1989; the fact that the Appellant ceased to be involved with these type of transactions as soon as he received a client inquiry about possible mortgage fraud, which occurred prior to any  communication  from  the  Law  Society;  the  fact  that  the  Appellant  had a reputation  for honesty and  integrity; and  the  fact  that the  Appellant  had acknowledged responsibility for certain  aspects  of  his  conduct  and  expressed  remorse. Having  considered  all  of  these  factors,  the  Appeal  Division concluded   that   the misconduct was unlikely to re-occur and that the ends of specific deterrence,  general deterrence and the maintenance of public  confidence  in  the  integrity  and  regulation  of the  legal profession would most appropriately be  met  by  the  imposition  of  a  two-year suspension  rather  than revocation.

Text Box: 2016 ONSC 641 (CanLII)[52]    In  my  view,  the  reasons  given adequately  support  the  Appeal  Division’s decision  on  penalty and display a line of  analysis  that  could  reasonably  lead  it  from the  evidence  that was before  it  to its  conclusion.   In other  words, it  was a reasonable decision.

How does this ruling change the law ?  What does it all mean ?  

     This ruling changes the law because it recognizes and accepts that delay which did not cause significant prejudice to the lawyer could nonetheless constitute a mitigating factor on penalty. The ruling recognizes that an integral part of the goal of reassuring the public as to the integrity of the profession went beyond the lawyer and involved considering the harm to the public's confidence in the legal profession's ability to regulate itself.

     It stands to reason that tribunals vested with the broad goal of restoring public confidence in the administration of justice as part of their statutory function must not limit themselves to the acts and omissions which are deserving of a penalty but ought to measure what ever penalty they impose having regard to the manner in which a case was brought and whether delay could undermine public confidence in the tribunal's process itself.


     The common law doctrine of abuse of process is a powerful tool in the quest to restore public confidence in either the legal profession or the administration of justice generally. Whether delay adversely impacts the fairness of any hearing is a consideration of fundamental importance.  This impact on any hearing renders the decision void.  This remains the law and Abbott does not change this. What Abbott does is merely applies the Supreme Court of Canada's words in Blencoe to the penalty phase of a lawyer discipline case.

     The Divisional Court's ruling on the question of whether the proceedings in Abbott ought to have been stayed are not particularly compelling in my view.  The Appellant argued that even when hearing fairness was not compromised a stay may be entered where the delay would bring the Law Society discipline process into disrepute and the need to prove significant prejudice would be dispensed with.  The Divisional Court disagreed with this interpretation of Blencoe holding that it was for the Appellant to prove both conditions, namely, the delay is unacceptable and the delay caused a significant prejudice.  The court's reasoning on this point seems to overlook the very reasons why the Appeal panel overturned the penalty of disbarment. They overturned the hearing panels penalty of disbarment, for among other reasons:  1. "it erred in failing to make a finding as to whether the delay was "inordinate and unacceptable", employed an improper test in evaluating prejudice to the Appellant as after finding that there was no doubt "some" prejudice to the Appellant, it went on to dismiss the prejudice because it was not "significant."  In my view,  the question of whether a stay of the proceedings was available to Mr. Abbott is ripe for appeal in these circumstances.  It will be for our Court of Appeal to provide direction on this very important question of law.


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