Incarceration an Order of Last Resort in Unauthorized Practice Cases

It is common to seek restraining orders against those practising the profession or holding themselves out. When an individual continues to perform a restricted activity or hold themselves out as a member of the profession after the restraining order has been granted, it is contempt of court. Contempt of court is a serious matter which can result in imprisonment.

In The Law Society of Upper Canada v. Hatzitrifonos, 2018 ONSC 3719,, Mr. Hatzitrifonos was found in contempt of court for the “repeated, wilful and deliberate” practise of law over a period of two years after a restraining order had been imposed. The regulator sought a 30 day jail term. The Court held that the primary purpose of sanction for contempt of court was to compel compliance with the law. A secondary purpose was deterrence. In this case however, Mr. Hatzitrifonos apologized for his conduct, changed his career path to avoid the temptation to practise law again, promised his conduct would never happen again, undertook community service and began payment of the costs he owed to the regulator. The Court said that incarceration was a last resort in contempt of court cases. It also found that a fine would be counter-productive as Mr. Hatzitrifonos had no money and very little income and it would prevent him from repaying the costs he already owed. Instead the Court expanded the amount of community service Mr. Hatzitrifonos had to fulfill and reinforced the need to continue paying the costs owed.

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