Deference to Discretion in Interim Suspensions

Interim orders have become increasingly important for protecting the public when dealing with disciplinary matters. Bill 87 is poised to permit Ontario health regulators to impose them during the investigative stage (rather than only after allegations have been referred to discipline). That is already the case for lawyers in Ontario, which presented three distinct issues in the interesting case of Marusic v Law Society of Upper Canada, 2017 ONSC 663. Ms. Marusic was a professional and romantic partner with another lawyer who was suspended for serious misconduct including misappropriating trust funds. When her involvement in the transactions was brought under scrutiny, the Law Society issued an interim order restricting her access to trust funds. A stricter order was possibly avoided because she had broken off her personal relationship with the suspended partner. Subsequently new concerns were raised about Ms. Marusic allowing her former partner to participate in the practice of law and charge an unreasonable fee to a client. Apparently the romantic relationship had also been re-established. The Law Society varied the interim order to suspend her entirely from the practice of law. In rejecting her challenge to that suspension, the Divisional Court made the following points:

  1. The Law Society properly considered her personal relationship with the suspended lawyer because the first interim order, restricting her access to trust funds, was made in part on the basis of her submission that “she was a victim of [her partner’s] deceitful ways, but had ended her personal relationship with him”.
  2. The Law Society properly imposed a total suspension, rather than just imposing restrictions, given that the misconduct concerns under investigation now stretched beyond one discrete area of practice (i.e., more than mishandling trust funds was now in issue).
  3. The Law Society gave adequate consideration to the concern that an interim order might be unfair because the investigation would be long and protracted. The tribunal gave reasons addressing that concern and provided a mechanism to revisit the order if the investigation was not completed in a timely manner.

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