Burden of Proof in Registration Applications Involving Good Character

As a general proposition it is the applicant for registration who has the burden of proving that they meet the entry requirements. However, this conceptual approach is challenging when an issue arises as to whether the applicant is of good character. It is impractical to require every applicant to demonstrate that every aspect of their past and current lives are consistent with their good character. It is also challenging for an applicant to address concerns that have not been disclosed to them. While there are various approaches to addressing this conundrum, the recent case of Mundulai v Law Society of Ontario, 2018 ONSC 6965, <http://canlii.ca/t/hw6gh> provides one useful methodology.

Mr. Mundulai sought registration after having been disciplined a number of times and then having been revoked for being ungovernable. He insisted that it was up to the regulator to prove that he was not of good character. The Law Society provided him with disclosure of its concerns, related to his disciplinary history, and insisted that the onus was on him to establish his current good character. The Court said:

There is ample case law supporting the Society’s entitlement to rely on the prior disbarment to meet its initial burden at a licensing hearing to demonstrate that the applicant may not meet the good character requirement. Thereafter, an evidentiary burden falls on the applicant to establish that, despite his or her prior misconduct, he or she now meets the good character requirement.

Depending on the wording of one’s legislation, the approach of raising concerns about an applicant’s good character from prior events and then requiring the applicant to demonstrate that those past events are not reflective of their current and true character is a useful one for regulators to consider.

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