Considering Past History When Imposing Disciplinary Sanctions

In Thistle v. Law Society of Newfoundland and Labrador, 2017 CanLII 86502 (NL SCTD), a practitioner was disciplined for inappropriate conduct in mortgage transactions. The main issue on appeal was the appropriateness of the sanction. The practitioner had a complaints history involving letters of caution and warnings. The Court said that some weight could be placed on this history even though no disciplinary finding had been made:

Recognizing that the test for a decision of the Committee falls short of a finding of guilt, I can see no fault in the Tribunal’s consideration of the letters of caution and letters of counsel, as part of the Appellant’s overall conduct history with the Law Society. In the context of the Tribunal’s decision on sanction, the fact that on several prior occasions the Committee formed the opinion that there were reasonable grounds to believe the Appellant’s conduct was deserving of sanction, should not be ignored. Rather, the question is one of how much weight to be attributed to this part of the Appellant’s conduct history. For example, a finding of guilt for professional misconduct might weigh more heavily against the Appellant, than a letter of caution arising from the reasonable opinion of the Committee. Each is relevant, however, and in this case the Appellant’s conduct record contains both.

The Court also said that some consideration could be given to other conduct of concern even though it had not been dealt with before the conduct in issue at the discipline hearing. While it could not be said that the practitioner had failed to learn from the other matter, it was still part of his prior history that could be considered.

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