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REGULATION OF LEGAL PROFESSION - Disciplinary procedure - Appeals - Punishments - Disbarment

Friday, August 11, 2017 @ 8:36 AM  


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Appeal by the Law Society of Upper Canada (Law Society) from a decision of the Divisional Court, dismissing its appeal from a decision of the Appeal Division of the Law Society Tribunal. The Appeal Division confirmed the finding of the Law Society’s Hearing Division that the respondent real estate lawyer knowingly participated in multiple instances of mortgage fraud, but reversed the Hearing Division’s decision to revoke his licence to practise law. The Appeal Division substituted a two-year suspension for the licence revocation, largely in response to what it found to be the Law Society’s inordinate and unacceptable delay in investigating and prosecuting the respondent. The Law Society’s investigation of the respondent began in 2007, but the investigation report was not issued until 2012, more than five and a half years after the investigation was authorized. The disciplinary Notice of Application was issued in April 2013 and the hearing before the Hearing Division occurred in August 2014.

HELD: Appeal allowed. The licence revocation was reinstated. The Appeal Division failed to defer to the Hearing Division’s penalty decision, as it was obliged to do. It also failed to pay respectful attention to the Hearing Division’s penalty reasons and consider them as a whole, and to consider whether the Hearing Division’s penalty fell within the range of possible, acceptable and defensible outcomes that were open on the evidence. The Hearing Division’s imposition of the presumptive penalty of licence revocation for mortgage fraud fell within the range of possible, acceptable and defensible outcomes that were open on the evidence. The Appeal Division failed to identify an overriding error of principle made by the Hearing Division that rendered its penalty decision unreasonable. To convert a presumptive licence revocation into a lesser penalty that allowed a member to continue to practice law required egregious personal prejudice of the kind demanded by the Supreme Court of Canada in the Blencoe decision to establish an abuse of process. As the Hearing Division found, this case did not meet that standard. The Appeal Division did not defer to the Hearing Division, but actively sought to subvert its reasoning. The Divisional Court erred in failing to apply the recognized principles of reasonableness review to ensure that the Appeal Division deferred appropriately to the penalty decision of the Hearing Division.

Law Society of Upper Canada v. Abbott, [2017] O.J. No. 3311, Ontario Court of Appeal, R.J. Sharpe, P.D. Lauwers and B. Miller JJ.A., June 23, 2017. Digest No. TLD-August72017009