Fishing Expeditions and Frustrated Investigations

Regulators do not have a duty to ensure that practitioners under investigation are satisfied that the investigation is well supported before the practitioner provides information to the regulator. In Cusack v Law Society of Ontario, 2019 ONSC 5015, the practitioner was under investigation for allegations that he permitted the unauthorized practice of law. The practitioner refused to provide the files requested by the regulator unless he first had disclosure of the basis of the investigation and had an opportunity to make submissions on the scope of the disclosure requested. The practitioner questioned whether the investigation might be a fishing expedition. In upholding the resulting discipline finding for non-cooperation the Divisional Court said:

The Law Society is one of many self-governing professions in the Province of Ontario. It is fundamental to the ability of a self-governing profession to properly regulate itself. Part of self-governance is the ability to discipline its members where professional misconduct occurs. The ability to discipline can only occur where the professional body has the ability to investigate its members when confronted with a complaint. A full and complete investigation provides confidence to the general public that it can rely on a self-governing profession. … [T]he failure of someone under investigation to co-operate in an investigation results in delay that can jeopardize the collection of evidence, including the obtaining of statements from witnesses. Ultimately, this can result in the backlog of investigations, which can lead to an erosion of confidence in the ability of the Law Society to self-regulate itself.

The Court said there was no disclosure obligation on the part of the regulator unless the matter was referred to discipline.

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