Reviewing Reinstatement Requests

Revoked registrants can usually apply for reinstatement after a specified period of time. While the criteria for reinstatement vary, usually one issue is whether the applicant is currently of good character such that the previous concerns are unlikely to reoccur. A recent Ontario Divisional Court decision provides guidance on the application of the criteria that would likely apply to several regulators.

In Mundulai v. Law Society of Ontario, 2024 ONSC 959 (CanLII), the applicant had “a lengthy discipline history, which resulted in the revocation of his licence to practice law following a finding of ungovernability in 2012.” Although the lapse of time favoured the applicant, numerous factors did not. The applicant: owed the regulator and professional liability insurer tens of thousands of dollars among other unpaid debts; had several criminal convictions including for intimate partner violence; failed to disclose information such as the criminal conviction on the application for reinstatement; allegedly was disrespectful to the regulator’s investigator during the reinstatement process; and had taken few rehabilitative steps. Both the regulator’s hearing tribunal and its internal appeal tribunal refused to reinstate the applicant.

In upholding the refusal, the Court made the following points:

  • The regulator has a duty to ensure that only applicants of good character are granted reinstatement.
  • The test for the internal appellate tribunal is the usual appellate standard of review, not the reasonableness standard. The appellate standard is correctness for questions of law and palpable and overriding error for most other issues. Procedural fairness is required throughout.
  • Under the legislation, making a false or misleading representation on the application is sufficient grounds, on its own, to refuse reinstatement.
  • When assessing the current good character of the applicant, several non-exhaustive factors should be considered “including the nature and duration of the misconduct, whether the applicant is remorseful, what rehabilitative efforts, if any, the applicant has taken and the success of such efforts, the applicant’s conduct since the proven misconduct, and the passage of time since the misconduct.”
  • Assertions that the regulator had treated the applicant unfairly, both in the past and during the investigation of the current application, are irrelevant to whether the applicant is currently of good character.
  • In this particular case, the evidentiary and procedural rulings made by the hearing and appeal tribunals were appropriate.

Generally, courts will show deference to a tribunal’s assessment of the current good character of applicants for reinstatement.

 

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