Incarceration for Unauthorized Practice and Holding Out

Jail is an option for unregistered persons who persist in practising a profession without authority or who mislead the public as to their unregistered status. However, courts are reluctant to use that option. An example of that hesitancy can be found in Law Society of Ontario v Mr. Sutharsan, 2023 ONSC 3708 (CanLII).

In that case an unregistered individual persisted in practising law and holding themselves out as a lawyer. Initially the individual gave an undertaking to cease doing so. After being caught again, the individual consented to an injunction. After being caught yet again, the individual conceded they were in contempt of court. The regulator sought a 30-day period of incarceration. The Court declined to order jail, imposing 100 hours of community service instead. In doing so, the Court noted the following:

  • The purpose of a penalty for civil contempt “is to enforce compliance with a court order and to ensure societal respect for courts.” Specific and general deterrence are the most important objectives. As such, custodial sentences are rare.
  • The individual was not conducting an ongoing business. The instances were situations in which he was reluctantly drawn in to help clients. He received insignificant remuneration. As such, the breach of the injunction order was not flagrant compared to other cases in which incarceration was ordered. The Court said: “In my view, the imposition of incarceration on the facts before me would represent a significant departure from the principle of like sentence for like conduct.”
  • The Court accepted that the individual was remorseful and was committing to ceasing to provide legal services. The Court said that “while the breach was serious and engaged serious issues, incarceration is not proportional to the nature of the breach.”

The Court did not impose a fine given the individual’s modest means. In addition to the 100 hours of community service the Court ordered the individual to pay $6000 in costs at a rate of $300 per month.

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