Jordan’ Approach to Delay Not Applied to Delay in Discipline Cases

In Law Society of Upper Canada v. Abbott, 2017 ONCA 525, the Ontario Court of Appeal has provided guidance on a number of important issues for regulators of professions.

The first issue addressed by the Court was how much deference administrative appeal tribunals should show to the first level tribunals making the original discipline decision. The Court said that administrative appeal tribunals, when reviewing lower level decisions, should show the same level of deference as the Courts do. For penalty decisions at least, the administrative appeal tribunal must find the lower tribunal’s decision to be unreasonable before it is entitled to interfere with it. In this particular scenario, past precedents had established that revocation was the presumptive penalty for knowingly participating in mortgage fraud, absent exceptional mitigating circumstances.

The appeal tribunal in this case had found exceptional mitigating circumstances existed in the delay of seven years between the initiation of the investigation and the beginning of the discipline hearing such as to allow them to overturn the first level decision. The Court disagreed, holding that the first level tribunal had fully considered: the delay; that mortgage fraud cases are difficult to investigate; that the misconduct was quite serious going to the very character of the practitioner; the risk to the public; and that there was no substantial prejudice shown to the practitioner by the delay. The Court found that the appeal tribunal did not establish the unreasonableness of the decision of the hearing tribunal and as a result the appeal tribunal had wrongly interfered with the hearing level decision.

The Court made an interesting comment about the fact that the practitioner had good character references and had not engaged in any misconduct since the original events:

With respect, these mitigating circumstances are quite generic, and in the context of an active prosecution, one would expect the member to be on his best behaviour or risk making things worse. As for the supportive reference letters, it is well to keep in mind the observations of Sir Thomas Bingham M.R. in Bolton, at para. 16:

It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. [Emphasis added.]

The Court of Appeal also said that in administrative law matters, the Court of Appeal does not show deference to the decisions of the Divisional Court.

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