Chris P. Donovan

The appellant brought a motion to vary the order of the motion judge to grant a stay of the Tribunal's decision pending appeal.

The Divisional Court found that the motion judge offered no reasons regarding irreparable harm and thus his decision was not entitled to deference.

Applying the RJR-MacDonald test, the Court found a serious issue to be tried and that the balance of convenience favoured a stay, noting the member had practiced without restriction since 2005.

The motion was granted and a stay was ordered until the appeal hearing date.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had overturned a Hearing Panel's finding that he did not commit fraud in certain real estate transactions.

The appellant argued the Appeal Panel failed to respect the Hearing Panel's credibility finding that he had an honest but mistaken belief that the lenders knew the actual structure of the transactions.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the Hearing Panel's credibility findings were tainted by its flawed legal analysis of fraud, and upholding the referral to a new Hearing Panel.