Four Takeaways for Four Participants

A Divisional Court of Ontario decision has at least four learning points for four of the participants in a discipline matter: Deokaran v. Law Society of Ontario, 2023 ONSC 1702 (CanLII). The registrant (a lawyer) was suspended indefinitely for failing to reply promptly and completely to her regulator related to two investigations. The registrant asserted that she had delivered a response to the mailroom of the regulator on the deadline date and that the regulator must have misplaced it. The hearing tribunal (affirmed by the appeals committee) did not find the registrant’s assertion to be credible and, even if she had dropped off the letter, the response omitted key information.

The takeaway for the regulator was that its formal processes and procedures for how it documents the handling of its mail and deliveries provided persuasive evidence that the letter was never delivered as claimed. It is difficult to prove a negative without such documentation. The regulator benefited from their documented processes.

The takeaway for the registrant was that she should have documented the delivery if it had been made. It was difficult for the panel to accept her evidence because she provided no particulars of the delivery (e.g., time of day, name of the person who received the letter), obtained no receipt for the delivery, and did not appear to refer to the delivery in her subsequent emails with the regulator.

There was also a takeaway for duty counsel who assisted the registrant at the discipline hearing. At this regulator, duty counsel is a volunteer position. The registrant argued that duty counsel provided ineffective assistance that resulted in a miscarriage of justice for various failures on their part. For example, the registrant argued that duty counsel failed to review the disclosure and options with her and failed to request instructions for an adjournment to address the late information provided by the regulator. Duty counsel was able, through their own records and their statements on the record at the discipline hearing, to establish to the satisfaction of the appeal panel that they had performed their role competently and had obtained instructions for the actions they took. Again, the takeaway is that clear documentation (as well as clear statements on the record) provided support for duty counsel’s position in response to the registrant’s allegations.

The takeaway for the appeal panel is that giving meaningful reasons on all of the issues raised by the registrant was instrumental in its decision being upheld by the Divisional Court. The Court quoted liberally from those reasons in support of its conclusion that no palpable and overriding error was made even on contentious credibility contests and on its application of legal principles (e.g., the Browne v Dunn rule relating to ensuring that a party is put on notice that impeaching evidence will later be tendered, and on what constitutes a failure to respond promptly and completely).

The finding was upheld.

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