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REGULATION OF PROFESSION - What constitutes misconduct - Grounds for suspension

Wednesday, October 16, 2019 @ 2:59 AM  

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Appeal by Cusack from a decision of the Appeal Division of the Law Society of Ontario that upheld a finding of professional misconduct. The Law Society authorized an investigation of the appellant, a sole practitioner, after receiving a complaint from a paralegal who worked with him. Senior Counsel for the Law Society reviewed the complaint and was satisfied there was a reasonable suspicion of professional misconduct. The appellant refused to produce documents requested by the Law Society’s investigator. The Law Society Tribunal found procedural fairness did not require the appellant be given an opportunity to make submissions before a decision was made to conduct an investigation or to request production of documents. The Tribunal imposed a one-month suspension followed by an indefinite suspension until the appellant completed his response. The Appeal Division found the Tribunal correctly interpreted s. 49.3 of the Law Society Act and concluded there was no procedural unfairness.

HELD: Appeal dismissed. The appellant conflated the disclosure obligations of the Law Society that were engaged when a licensee was the subject of an actual discipline hearing before the Law Society Tribunal. If a complaint did not reach the level of a full hearing, there was no disclosure obligation engaged. Section 49.3 of the Law Society Act did not require the Law Society to seek a response to a complaint before authorizing the use of the powers available under s. 49.3(2). The Appeal Division’s decision was reasonable. The appellant was obliged to cooperate with the investigation.

Cusack v. Law Society of Ontario, [2019] O.J. No. 4467, Ontario Superior Court of Justice - Divisional Court, N.L. Backhouse, M.L. Edwards and L.G. Favreau JJ., September 4, 2019. Digest No. TLD-October142019006