Enforcing Unauthorized Practice Provisions through Contempt of Court

Regulators are increasingly obtaining restraining orders against illegal practitioners (particularly former members). As a result of these cases, the law of civil contempt has actually become clearer. Recently, in The Law Society of Upper Canada v Fingold, 2016 ONSC 5684, the Ontario Superior Court of Justice clarified the process for finding a person in contempt. Quoting the recent Court of Appeal case, Chirico, the Court said: “The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt….” The Court emphasized: “Most importantly, the Court of Appeal in Chirico reaffirmed the principle that the party subject to the court order must comply with ‘both the letter and spirit of the order’….” and “the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice.” In this case, the Court rejected a circumvention scheme in which Mr. Fingold, a disbarred lawyer, hired paralegals to file the paperwork on his behalf.

The Court rejected any concern that the enforcement proceedings were initiated by the regulator and not the client in the transaction. The Court also approved the practice of separating the finding phase of the hearing from the penalty phase, to prevent the evidence that is relevant to one phase improperly tainting the other phase.

More Posts

The Right to Rebut?

Many regulators frequently provide a copy of the registrant’s response to a complaint to the complainant for comment. Doing so can assist in providing the

Registration Runaround

A concern for regulators arises when applicants for registration, who are practicing elsewhere at the time, foresee disciplinary issues developing in their existing jurisdiction. A

Right-Touch Regulation Redux

Perhaps the most consequential document in professional regulation in the English-speaking world this century is Right-Touch Regulation published by the UK oversight body, the Professional

Reason Writing Omissions

Writing reasons for a regulatory decision is not easy, especially for non-lawyers. An administrative body’s reasons are the primary basis upon which a court will