At some point for most professions, rudeness can cross the line from simply being unseemly to constituting professional misconduct. For lawyers advocating fearlessly on behalf of their clients, that bar is set quite high.
At two criminal trials a lawyer made several belligerent comments attacking the integrity and impartiality of the Judges and Crown counsel. There were also concerns about the competence of the registrant. The Law Society hearing tribunal found the allegations were established and imposed a three-month suspension and a significant costs order.
In Guiste v. Law Society of Ontario, 2026 ONSC 4419 (CanLII) the Court on appeal upheld the findings, sanction and (with a dissent) the costs order. Several aspects of the Court’s reasoning are relevant to regulators generally.
The Court stated that a finding of “incivility” can be applied to a broad range of conduct, which generally falls into two categories: offensive communications and baseless allegations of impropriety. On the finding of incivility, some of the issues dealt with by the Court include the following:
- Specificity of the Notice of Hearing: The Court held that a notice of hearing in discipline matters does not need to be as precise as one would expect of a criminal charge. The allegations in the Notice of Hearing against the lawyer regarding incivility towards the Judges and Crown counsel contained examples prefaced by the word “including”. The Court found that, given that the other examples upon which the Law Society relied were contained in the disclosure provided to the lawyer, it was not procedurally unfair, beyond the scope of the referral to discipline, or, outside of the jurisdiction of the discipline tribunal to consider those other examples of incivility .
- Basis for making allegations of impropriety against prosecutors and adjudicators: The Court noted that lawyers have a duty of resolute advocacy and that systemic racism within the legal system is an issue deserving of challenge. As such, disciplining a lawyer for incivility where the lawyer has raised issues of racism needs to be exercised cautiously. However, a finding of incivility can still occur where the manner in which the allegations of systemic racism asserted by the lawyer were unduly belligerent or “if there is no foundation for the allegation and no possibility that it will lead to a remedy”. The comments also need to be made in bad faith. The Court concluded that there was a basis for the discipline tribunal to find that these criteria had been met. Of course, the criteria would be different in other circumstances, such as communications with clients, ordinary interactions with peers, and statements made to the general public: Sullivan v. Ontario College of Teachers, 2018 ONSC 942 (CanLII); Ontario College of Veterinarians of Ontario v. Dr. Ackerman, 2022 ONSC 4334 (CanLII).
- Considering comments in aggregate: Unfortunate remarks that may not amount to incivility on their own can still form part of a larger picture of incivility when combined with other statements.
On the issue of sanction, the Court noted the following:
- “It is entirely appropriate for a Hearing Panel to consider the penalties that were imposed in similar cases as long as it recognizes that no two cases are exactly alike and the penalty in each case must be decided based on that case’s unique circumstances.”
- Expert evidence from the registrant’s therapist can be given less weight where the therapy was for a brief period of time, was only begun late in the hearing process, and where the therapist is unaware of some of the registrant’s past conduct.
- Systemic racism can be a “mitigating factor” on sanction even where there is no direct causal link between such racism and the registrant’s conduct. However, the tribunal can still require some connection between the systemic racism experienced by the registrant and their conduct.
- While a registrant’s attitude and denial of the allegations is not an “aggravating factor” on sanction, it can still have an impact on some sanctioning considerations such as whether the registrant has learned from their pervious discipline experiences.
There was not unanimity on the defensibility of the order for the registrant to pay $225,000 in costs (of a total of $338,000). The dissenting panellist was of the view that the order did not apply the principle of proportionality given the registrant’s financial hardship and was “excessive, unreasonable and effectively punitive”. Also, the impact of any costs order that cannot be paid would effectively amount to the revocation of the registrant’s licence. The majority of the Court, however, upheld the costs order on the basis that there is a high degree of discretion in tribunals ordering costs, because the registrant’s conduct significantly lengthened the hearing, and because the hearing tribunal took into account the registrant’s financial circumstances in making the award. On the issue of whether the size of the costs would create a barrier for other registrants to make full answer and defence to allegations against them, the majority of the Court said:
In my view, the court should equally consider the adverse precedential value of a reduction in a costs award in his case. A member who has limited means should have the same incentive as do other members to keep the hearing process running smoothly, to follow pre-hearing directions, to avoid steps that are “improper, vexatious, and/or unnecessary,” to avoid a six-day, unplanned examination-in-chief, and to ensure proceedings are not unnecessarily extended….
Even for lawyers advocating on behalf of their clients, unfounded attacks against the integrity of colleagues and adjudicators can constitute incivility resulting in serious sanctions and a hefty costs award. The bar for a finding of incivility is probably much lower for professions the hallmarks of which are collaboration and teamwork rather than adversarial combat.
