Law Society of Upper Canada v. Evans, 2008 ONSCDC 34276

Law Society of Upper Canada v. Evans

91 O.R. (3d) 163

Ontario Superior Court of Justice,

Divisional Court,

Kitely, Molloy and Swinton JJ.

July 8, 2008

Professions -- Barristers and solicitors -- Law Society -- Membership -- Restoration -- Hearing panel having discretion under s. 31(3) of Law Society Act to impose conditions and restrictions on former judge whose membership in Law Society is restored -- Burden of proof on applicant to prove restoration is appropriate -- Hearing panel erring in respect of standard of proof in finding that applicant must present clear and convincing proof based on cogent evidence -- Test for restoration under s. 31(3) similar to that for readmission of disbarred lawyer -- Law Society Act, R.S.O. 1990, c. L.8, s. 31(3). [page164]

E resigned as a judge of the Ontario Court of Justice after he was found by the Ontario Judicial Council to have committed acts of serious misconduct involving six female subordinates. He applied for restoration of his membership in the Law Society, which had been in abeyance while he was a judge. The hearing panel found that under s. 31(3) of the Law Society Act, which deals with the process whereby a person who has been a judge may be readmitted to the Society, its only options were to dismiss the application or to reinstate E without any restrictions. The hearing panel held that there was an initial burden on the Society to demonstrate at least a prima facie case for refusal, and that the burden then shifted to E to show that the membership should be restored. The hearing panel required E to present clear and convincing proof based on cogent evidence (the Bernstein standard) that the application should be granted. The hearing panel found that the test for restoration under s. 31(3) should be adapted by analogy from the test traditionally applied for determining whether to readmit a lawyer who had previously been disbarred. The hearing panel dismissed the application. The appeal panel reversed that decision and ordered that E's membership in the Society be restored, subject to a condition that for a period of two years he should only practice as an employee of another lawyer. The Society appealed.

Held, the appeal should be dismissed.

The appeal panel was entitled to deference on its findings of mixed fact and law and on its interpretation of the Act, and the standard of review of those findings was that of reasonableness. On questions of law outside its area of expertise, the appeal panel was required to be correct.

The appeal panel's finding that there is jurisdiction to impose conditions on a person whose membership is restored under s. 31(3) was reasonable.

The appeal panel was correct in finding that the application of the Bernstein standard of proof was inappropriate. The Bernstein requirements with respect to the quality of evidence required were meant to be a shield for the protection of individuals against whom serious accusations were made and who were facing serious consequences as a result. There can be no rational basis for imposing the Bernstein standard on an applicant seeking restoration.

While it was unnecessary to decide this issue, the burden of proof should be on an applicant to prove that restoration is appropriate.

The appeal panel was correct in holding that the hearing panel erred in law by considering the credibility findings of the Ontario Judicial Council to be an additional indication of bad character beyond the council's findings of misconduct. There can be situations in which a finding of credibility made in one court proceeding can be relevant to character in a completely different proceeding. However, those situations are rare and typically arise only where there has been a clear finding of fabricated evidence or perjured testimony in a prior hearing. Those were not the sort of credibility findings made by the judicial council in this case.

In considering restoration under s. 31(3) of the Act, it is reasonable to apply a test that is similar to the test for readmission of a disbarred lawyer, with appropriate adjustments. The appeal panel identified and applied the correct test.

The appeal panel did not err by failing to accord deference to the hearing panel's findings of fact. The errors of law by the hearing panel were so fundamental that they may have coloured its conclusions on the facts.

The result reached by the appeal panel, including the relatively lenient condition imposed, was one within a reasonable range of options available to it. [page165]

APPEAL from the decision of the Appeal Panel of the Law Society of Upper Canada reversing the decision of the Hearing Panel and ordering that the respondent's membership in the Society be restored.

Cases referred to Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, consd Other cases referred to Bernstein and College of Physicians and Surgeons (Re) (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447, [1977] O.J. No. 2182, 76 D.L.R. (3d) 38, [1977] 1 A.C.W.S. 316 (Div. Ct.); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, 223 D.L.R. (4th) 577, 302 N.R. 1, J.E. 2003-713, 257 N.B.R. (2d) 207, 48 Admin. L.R. (3d) 33, 31 C.P.C. (5th) 1, 121 A.C.W.S. (3d) 172, REJB 2003-39404; Law Society of Upper Canada v. Neinstein (2007), 2007 8001 (ON SCDC), 85 O.R. (3d) 446, [2007] O.J. No. 958, 280 D.L.R. (4th) 263, 222 O.A.C. 286, 155 A.C.W.S. (3d) 1228 (Div. Ct.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201, J.E. 98-1298, 11 Admin. L.R. (3d) 1, 43 Imm. L.R. (2d) 117, 79 A.C.W.S. (3d) 998, 38 W.C.B. (2d) 423; R. v. Ghorvei (1999), 1999 19941 (ON CA), 46 O.R. (3d) 63, [1999] O.J. No. 3241, 124 O.A.C. 301, 138 C.C.C. (3d) 340, 29 C.R. (5th) 102, 43 W.C.B. (2d) 308 (C.A.) Statutes referred to Law Society Act, R.S.O. 1990, c. L.8, ss. 31 [as am.], (3) [as am.], 49.21(2) [as am.], 49.25 [as am.], 49.26 [as am.], 49.29(2) [as am.], 49.32(1) [as am.], 49.33 [as am.], 49.35 [as am.], (2) [as am.]

Guy Pratte and Nadia Effendi, for appellant. Chris Paliare and Danny Kastner, for respondent.

The judgment of the court was delivered by

MOLLOY J.: -- A. Introduction

[1] Kerry Patrick Evans was a judge of the Ontario Court of Justice from 1997 until his resignation on November 15, 2004. He resigned after he was found by the Ontario Judicial Council to have committed acts of serious misconduct involving six female subordinates, including improper touching (some of it in a sexual manner) and inappropriate remarks with sexual innuendo. Mr. Evans, intending to return to the practice of law, then applied to the Law Society of Upper Canada (the "Society") for reinstatement of his membership, which had been in abeyance while he was a judge.

[2] The Society established a Hearing Panel to determine whether Mr. Evans should be reinstated. For written reasons delivered on August 2, 2006, the Hearing Panel dismissed [page166] Mr. Evans' application. Mr. Evans appealed that decision to the Appeal Panel. On March 6, 2007, a majority of the Appeal Panel reversed the decision of the Hearing Panel and ordered that Mr. Evans' membership in the Society be restored, subject to the condition that for a period of two years he should only practice as an employee of another lawyer.

[3] The Society now appeals to the Divisional Court from the decision of the Appeal Panel and seeks an order restoring the decision of the Hearing Panel.

[4] This is a case of first instance. It is the first time in its history that the Society has dealt with whether to restore privileges as a lawyer to a former judge found guilty of serious misconduct, and therefore the first time that the Society or the courts have been called upon to interpret the relevant legislative provisions. B. The Statutory Scheme

[5] Section 31 of the Law Society Act, R.S.O. 1990, c. L.8 (the "Act"), deals with the process whereby a person who has been a judge may be readmitted to the Society. The relevant provisions state:

31(1) The licence of a person is in abeyance while the person holds office, (a) as a full-time judge . . . . . . . .

(2) Upon ceasing to hold an office described in subsection (1), a person whose licence is in abeyance may apply to the Society to have the licence restored and, subject to subsection (3), the Society shall restore it.

(3) The Hearing Panel may refuse to restore the licence of a person whose licence is in abeyance if, after holding a hearing, the Panel finds that the person was removed or resigned from an office described in subsection (1) because of, (a) conduct that was incompatible with the due execution of the office; (b) failure to perform the duties of the office; or (c) conduct that, if done by a licensee, would be professional misconduct or conduct unbecoming a licensee.

[6] The Hearing Panel consists of at least three persons appointed by Convocation of the Society, of which at least one must be a non-lawyer: s. 49.21(2) of the Act. The Act provides that the Hearing Panel "may determine any question of fact or law that arises in a proceeding before it": s. 49.25. Further, the Act states that "an order of the Hearing Panel may include such terms and conditions as the Panel considers appropriate": s. 49.26. [page167]

[7] A party to a proceeding before the Hearing Panel may appeal any final decision or order of the Hearing Panel to the Appeal Panel, which consists of at least five persons appointed by Convocation, including at least one non-lawyer: ss. 49.32(1) and 49.29(2). A party other than the Society can appeal on any grounds: s. 49.33.

[8] Like the Hearing Panel, the Appeal Panel is empowered to determine any question of fact or law that arises in a proceeding before it: s. 49.35. The specific powers on appeal are set out in s. 49.35(2), which states:

49.35(2) After holding a hearing on an appeal, the Appeal Panel may, (a) make any order or decision that ought to or could have been made by the Hearing Panel or person appealed from; (b) order a new hearing before the Hearing Panel, in the case of an appeal from a decision or order of the Hearing Panel; or (c) dismiss the appeal.

[9] Where, as here, the Appeal Panel makes a final decision on an appeal from a Hearing Panel under s. 31(3), there is a further right of appeal from the Appeal Panel to the Divisional Court. If the Society is the appellant, its grounds of appeal are limited to "a question that is not a question of fact alone": s. 49.32(2). C. Standard of Review

[10] Until recently, it was well-settled law that the standard of review applicable to decisions of law society discipline committees was reasonableness simpliciter: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17. The Supreme Court of Canada stated in Ryan, at para. 42:

Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a more deferential standard of review than correctness. These factors suggest that the legislator intended that the Discipline Committee of the self-regulating Law Society should be a specialized body with the primary responsibility to promote the objectives of the Act by overseeing professional discipline and, where necessary, selecting appropriate sanctions. In looking at all the factors as discussed in the foregoing analysis, I conclude that the appropriate standard is reasonableness simpliciter. Thus, on the question of the appropriate sanction for professional misconduct, the Court of Appeal should not substitute its own view of the "correct" answer but may intervene only if the decision is shown to be unreasonable.

[11] Under the previous authorities, the reasonableness standard was applicable not only to questions of mixed fact and law, but also to questions of legal interpretation involving the Society's [page168] constituent statute: Law Society of Upper Canada v. Neinstein (2007), 2007 8001 (ON SCDC), 85 O.R. (3d) 446, [2007] O.J. No. 958 (Div. Ct.), at para. 45; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46. However, for other questions of law, the Appeal Panel decisions were reviewable on a standard of correctness: Neinstein, at para. 43.

[12] In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. 9, 2008 SCC 9, the Supreme Court of Canada revisited the appropriate standards of review for administrative tribunals and determined that the two previous standards of patent unreasonableness and reasonableness simpliciter should be merged into "reasonableness", such that all decisions would henceforth be reviewed on either a correctness or reasonableness standard. In doing so, the court stipulated that its intent was merely to bring greater simplicity and logic to the exercise and not to change the traditional deference afforded to administrative tribunals by the courts: para. 48. The court also held that courts should be guided by existing law as to the appropriate standards of review and specifically noted that a standard of reasonableness was appropriate where an expert tribunal is interpreting the provisions of its home statute: para. 54.

[13] I do not see Dunsmuir as having any impact on the well- established standards for review of decisions from the Society's Appeal Panel. The Appeal Panel is entitled to deference on its findings of mixed fact and law and on its interpretation of the Act and this court should only intervene if the Appeal Panel's decision is unreasonable. However, on questions of law outside that area of expertise, the Appeal Panel is required to be correct. D. The Decision of the Hearing Panel

[14] The hearing before the Hearing Panel proceeded upon the basis of an agreed statement of fact as well as viva voce testimony from Mr. Evans, eight "good character" witnesses called by Mr. Evans and four medical experts (three called by Mr. Evans and one retained by the Society to provide an assessment of Mr. Evans). The agreed statement of facts incorporated the reasons for decision of the Ontario Judicial Council and accepted its findings of fact and findings of credibility for purposes of the hearing. Mr. Evans also admitted that he had resigned from his position as a judge because of the judicial council's findings, that his conduct was not compatible with the due execution of his office as a judge and that if such conduct had been done by a member of the Society, it would either be considered professional misconduct or conduct unbecoming a barrister and solicitor. [page169]

[15] The hearing proceeded before a three-member panel. Before a decision was delivered, one member of the panel was appointed to the Bench. However, the remaining two members were unanimous in their decision and reasons, which were delivered on August 2, 2006.

[16] The Hearing Panel first set out a number of fundamental propositions which formed the underpinning for its decision, including the powers of a hearing panel in a restoration hearing under s. 31(3) the burden of proof the standard of proof; the guiding principles and relevant considerations to be taken into account by the panel and the tests to be met for restoration.

Jurisdiction of the panel to impose conditions

[17] The Hearing Panel held that it had a wide discretion under s. 31(3) to make one of two orders: it could either dismiss Mr. Evans' application or restore him to practice as a lawyer without any restrictions. The Hearing Panel was of the view that it had no discretion to reinstate Mr. Evans subject to any conditions on his licence to practice. In this regard it contrasted s. 31(3) to other sections of the Act relating, for example, to professional misconduct and conduct unbecoming a barrister and solicitor, which make specific provisions for numerous types of conditions that may be imposed on a person's right to practice. In the absence of such specific powers, the panel held it could not impose equivalent restrictions under s. 31(3) and found that it would be logically inconsistent to find a person was fit to be readmitted, but only if conditions such as office protocols, monitoring or ongoing psychotherapeutic care were imposed.

Burden of proof

[18] The Hearing Panel held that there is an initial burden on the Society to demonstrate at least a prima facie case for refusal. At that point, the burden shifts to the applicant to show that the membership should be restored.

Standard of proof

[19] The Hearing Panel referred to the standard of proof that is normally applied when the Society seeks to discipline or disbar a member. The standard is a civil one, less onerous than the criminal standard of proof beyond a reasonable doubt. However, the Hearing Panel observed that the standard rises in direct proportion to the gravity of the consequences and seriousness of the consequences. A finding of professional misconduct can only [page170] be made if there is "clear and convincing proof based on cogent evidence". The Hearing Panel determined that when "the shoe is on the other foot", such that an applicant seeks readmission where serious misconduct was previously found, the applicant is subject to the same standard of proof"namely, a civil standard of a balance of probabilities rising with (a) the gravity of the allegations and (b) the seriousness of the consequences". In this case, the Hearing Panel held that the applicant had "the burden to present clear and convincing proof based on cogent evidence that the application should be granted" (Hearing Panel reasons, para. 8).

The test for restoration

[20] The Hearing Panel held that the test for restoration under s. 31(3) should be adapted by analogy from the test traditionally applied for determining whether to readmit a lawyer who had previously been disbarred. The panel set out a seven-element test, all of which must be satisfied before an application for restoration can be granted. The seven elements to be met were stated (at para. 20) to be: (i) the readmission or restoration will not, when viewed objectively, have a serious adverse impact on public confidence in the legal system; (ii) a long course of conduct showing the applicant to be a person of good character who is to be trusted and is in every way fit to be a lawyer; (iii) conduct that is unimpeached and unimpeachable, as established through the evidence of trustworthy persons, especially members of the profession and persons who have known the applicant since the misconduct findings in question; (iv) a sufficient period has elapsed since the misconduct finding; (v) the applicant has purged his guilt; (vi) there is independent corroborating evidence that it is "extremely unlikely" that the misconduct will recur if the applicant is permitted to return to practice; and, (vii) the applicant is current in the law.

[21] In addition, the Hearing Panel held that the nature and gravity of the offending conduct should be incorporated into the test in considering the requisite degree of rehabilitation necessary to permit readmission. The more serious and recent the original conduct, the more careful the panel must be in determining whether the test has been met. (See reasons, para. 16.)

Guiding principles and considerations

[22] The Hearing Panel set out (at para. 18) nine principles of general application to be taken into account, as follows: [page171] (i) The Society regulates the legal profession in the public interest. (ii) Public confidence in the legal profession is more important than the fortunes of any one lawyer. (iii) Public confidence is based on matters such as the lawyer's credibility, integrity, character, repute, and fitness. (iv) The ability to practice law is not a right but a privilege. (v) Once the privilege is lost, it is hard to regain. (vi) The privilege can be regained no matter how egregious the misconduct that led to its loss, provided sufficiently compelling evidence of genuine and enduring rehabilitation is presented. (vii) The privilege can be regained where the misconduct was committed as a result of a psychiatric or medical disorder that is extremely unlikely to recur because the disorder has been successfully treated. (viii) The legal profession has a responsibility to recognize cases of true rehabilitation; however independent corroborating evidence is required to establish that the rehabilitation is genuine and enduring. (ix) The restoration must not be detrimental to the integrity and standing of the bar, the judicial system, or the administration of justice, or be contrary to the public interest.

[23] The Hearing Panel also identified eight considerations that bear upon the individual, as follows: (i) the applicant's character, standing and professional reputation in the community in which he resided and practiced prior to the disbarment or similar disposition; (ii) the ethical standards which he observed in the practice of law; (iii) the nature and character of the misconduct for which he was disbarred or his right to practice was otherwise lost; (iv) the sufficiency of the punishment undergone and the making or failure to make restitution; (v) his attitude, conduct, and reformation since disbarment or similar disposition; (vi) the time that has elapsed since disbarment or similar disposition; (vii) his current proficiency in the law.

[24] It will be seen that there is considerable overlap between those factors which the Hearing Panel identified as a seven-part test for readmission, the nine guiding principles and the eight considerations. Essentially, the Hearing Panel was piecing together various factors that had been applied in cases dealing with the readmission of lawyers after disbarment. However, having identified these various factors, the Hearing Panel reviewed the evidence and submissions of the parties, [page172] and then proceeded to apply the seven-element test in light of that evidence. In doing so, it took into consideration the public interest and the importance of maintaining public confidence in the integrity of lawyers.

[25] The Hearing Panel found that Mr. Evans was current in the law. However, the panel found that he failed to satisfy any of the other six tests. In particular, the Hearing Panel held that:

-- Public confidence would be shaken by the restoration to practice so soon of a judge whose credibility had been found to be lacking by his peers at the Ontario Judicial Council and because there had been, not only a serious misconduct, but a breach of his undertaking as a judge to comport himself to the highest standards.

-- There had not been a sufficiently long period of time since the misconduct.

-- The character witnesses who testified on Mr. Evans' behalf did not accept that he could have committed the acts found by the Ontario Judicial Council and their evidence of his character, when weighed against what he had done and the findings of credibility against him, could not be given weight. Also, when Mr. Evans first wrote to the Society seeking restoration of his privileges to practice, he said only that he had resigned from the Bench and did not mention the proceedings against him, which the panel found to be less than candid.

-- Two of the complainants before the judicial council had commenced litigation against Mr. Evans, which was still ongoing.

-- Although Mr. Evans had "in good measure accepted responsibility for his actions", the panel remained concerned about some of the ways in which he minimized his conduct by describing it as "careless" or being "too familiar" and did not fully appreciate that his actions were wrong and immoral. The panel therefore felt that he had not sufficiently purged his guilt.

-- Although the panel believed Mr. Evans had "probably learned his lesson" and was "highly unlikely" to re-offend, the Panel held he had not met the test of proving he was "extremely unlikely to re-offend". [page173] E. The Decision of the Appeal Panel

[26] Mr. Evans' appeal from the Hearing Panel decision was heard by a five-person Appeal Panel. In the result, the Appeal Panel granted the appeal, with one member of the panel dissenting. The Appeal Panel ordered that Mr. Evans' membership in the Society be restored, subject only to the condition that for the first two years he practice as an employee of another member of the bar.

Standard of proof

[27] The Appeal Panel held that the appropriate standard is proof on the balance of probabilities, and that the Hearing Panel erred in law by applying the enhanced burden of proof requiring "clear and convincing proof based on cogent evidence". The Appeal Panel considered this error to be sufficiently "prejudicial" that no deference could be given the determinations of the Hearing Panel and the Appeal Panel "must consider the appropriate decision regarding restoration on the merits".

Jurisdiction to impose conditions

[28] The Appeal Panel held that there is jurisdiction under s. 49.26 of the Act to impose terms and conditions on a person being restored to practice under s. 31(3) and found that the Hearing Panel erred in law by restricting its jurisdiction to only the two options of restoration without conditions or refusal to restore.

Burden of proof

[29] On the burden of proof, the Appeal Panel expressed reservations about the correctness of the Hearing Panel's conclusion that the applicant, under s. 31(3), bears the burden of proving his membership should be restored. The Appeal Panel stated, at para. 12:

To view restoration under s. 31 as raising the question"Can the applicant prove that they should be readmitted?" is to pose the question more harshly against an applicant than the section in fact demands. In our view the correct question to ask is: "Does the conduct that comes within (a), (b) or (c) (and which led to the termination of the official position and thus the necessity for a hearing) disentitle the applicant from the right to resume their legal career, which has been in abeyance, when considered in all the relevant circumstances?"

[30] The Appeal Panel examined the wording of s. 31 and concluded that because the section states that the membership "shall" be restored unless one of the exceptions applies and because the section states that the Hearing Panel "may refuse to [page174] restore" the membership, then arguably the burden of proof should be on the party seeking to persuade the panel to "refuse to restore" the membership, i.e., the Society.

[31] However, the Appeal Panel's comments on this point are obiter. The Appeal Panel noted that both parties had taken the position that the burden of proving restoration should be granted was on the applicant. There is some confusion in the reasons as to where the Appeal Panel actually placed the onus. In its earlier analysis on the issue, the panel set out (at para. 12, as quoted above) what it considered to be the proper question, but then indicated it was not necessary to definitively decide the issue because the parties had agreed to a contrary view. Later in the decision (at para. 37) just before the Appeal Panel commenced its analysis of the evidence, it stated the question to be asked in the form it had earlier identified in para. 12 of its reasons, which arguably places the burden of proof on the Society. However, having considered the evidence, the Appeal Panel concluded, at para. 39"In all these circumstances, we are persuaded by the appellant [Mr. Evans] on the balance of probabilities to restore the appellant's membership." Accordingly, the Appeal Panel, when itself considering the merits of Mr. Evans' application, does appear to have put the onus on him to establish on a balance of probabilities that his membership should be restored.

Credibility findings by the Ontario Judicial Council

[32] The Appeal Panel also took issue with the manner in which the Hearing Panel dealt with the findings of credibility made by the Ontario Judicial Council. The Hearing Panel found that the adverse findings of credibility were another indication of bad character, over and above the findings of misconduct. The Appeal Panel found that the Hearing Panel erred in law by regarding the judicial council's negative findings as to Mr. Evans' credibility as an independent fact proving an occasion of disreputable conduct. However, the Appeal Panel itself noted that this finding was not crucial to its decision and is therefore obiter.

The test for restoration

[33] The Appeal Panel held that "the factors listed by the Hearing Panel derived from precedents dealing with readmission applications are relevant and should be considered", but added the caveat that this should be done with "appropriate variation in language to reflect the fact that at issue is the resumption of a legal career that has been terminated for misconduct sufficient to warrant disbarment": Appeal Panel reasons, at para. 13. The [page175] Appeal Panel further held that the Hearing Panel ought to have considered, as part of the test, whether the misconduct that terminated the official career would have resulted in disbarment had the applicant been a lawyer who engaged in similar conduct. The Appeal Panel rejected the submission of counsel for the Society that whether or not Mr. Evans' conduct would have warranted disbarment had he been a lawyer was an irrelevant consideration and noted that precedents from disciplinary proceedings suggested a suspension of several months could be a reasonably expected disposition. The Appeal Panel did note, however, that this would not be a "determinative issue" because the applicant's status as a judge is "relevant to measuring the seriousness of the transgression".

Decision on the merits

[34] The Appeal Panel acknowledged that having set aside the decision of the Hearing Panel, it had the option of ordering a new hearing or making any order that the panel ought to have made. It then stated that both parties had urged the Appeal Panel not to order a new hearing, but rather to bring some finality to the proceeding by making its own decision on the merits.

[35] In its analysis of the merits, the Appeal Panel made no reference to any of the determinations of the Hearing Panel. The Appeal Panel held that the psychiatric evidence supported a finding that there was a low risk Mr. Evans would re-offend and concluded that he had learned his lesson. The Appeal Panel was further influenced by its conclusion that a lawyer convicted of similar conduct would only have been suspended for something between 30 days and 18 months and noted that Mr. Evans had already been punished enough by being removed as a judge. Finally, the Appeal Panel concluded that an informed member of the public would not be troubled by Mr. Evans' readmission to the practice of law. The Appeal Panel's reasons in this regard are set out in paras. 38 and 39 of its decision, as follows:

The psychiatric evidence presented from the recognized experts in the area of sexual misconduct demonstrated that the appellant's risk to reoffend was as low as the psychiatric profession was prepared to say. The evidence as a whole presented the clear picture that a person who has engaged in such conduct has thereby demonstrated a capability to do so in the future, but that to the extent it is possible for a psychiatrist to assess such risk the appellant's risk to repeat was "low". His improper conduct has been followed by the subsequent proceedings before the Judicial Council and the Hearing Panel and this Panel, and evidence would be required to support the counterintuitive notion that these consequences of his conduct would not have any effect on him or any future behaviours. In short, there was no evidence that the appellant was incapable of "learning his lesson" even if his [page176] professed characterizations of his conduct before the Hearing Panel still fall short of what appropriate insight might lead us to expect. We are also influenced by the fact that his inevitable termination as a judge cannot be taken to signal that disbarment would have befallen a lawyer guilty of similar conduct. On the contrary, while sexual offences by lawyers have resulted in disbarment, these cases have involved facts much more serious than the appellant's conduct. Similar cases that have resulted in suspensions involved terms of 30 days to 18 months. In the appellant's case he has effectively been "suspended" for the 27 months (since November 15, 2004) that these proceedings have been in progress. It is also not irrelevant that the subject events date back some five years now.

In all these circumstances, we are persuaded by the appellant on the balance of probabilities to restore the appellant's membership, albeit with one condition: that for two years he practice only as an employee of another member of the bar. We are informed such employment is available. In this way we remind the appellant of the gravity of his transgression and provide a mechanism for such mentoring and guidance as may be required for his reentry into the legal profession. We believe that an informed member of the public will appreciate that the fact that by his conduct the appellant showed himself unfit to be a judge does not inevitably signal that he is unfit to earn his livelihood again as a member of the bar, especially having regard to this two-year transition period to which we are subjecting him. The appellant was a member of the bar for 16 years with an excellent reputation and unblemished record before his judicial appointment. There is every reason, given the psychiatric evidence and the extensive character evidence showing the widespread personal and professional support that he has amongst his peers, to believe such a commendable state of affairs can be achieved by him again during the rest of his legal career. F. Analysis

[36] As stated above, on judicial review, the Appeal Panel is entitled to deference with respect to findings of mixed fact and law and questions of law relating to the interpretation of its home statute. However, on other questions of law, the Appeal Panel is required to be correct. There is no right of appeal by the Society for questions of fact alone.

Jurisdiction to impose conditions

[37] The Appeal Panel held that the "basket clause" in s. 49.26 of the Act applies to proceedings under s. 31(3) and that there is therefore jurisdiction to impose conditions on a person whose membership is restored under s. 31(3). That is a question of law with respect to the interpretation of the panel's constituent statute and entitled to deference from this court. The Appeal Panel is not required to accord deference to the Hearing Panel on this point, because both have the same expertise.

[38] The Appeal Panel's interpretation of this provision is a reasonable one. Indeed, in my view, it is correct. There is nothing in the language of the provision that would restrict its general [page177] application. The fact that possible conditions and a specific "basket clause" are set out in other parts of the Act dealing, for example, with things like discipline proceedings for lawyer misconduct, does not operate to limit the generality of s. 49.26. There are a broad variety of situations in which a person may be subject to a hearing under s. 31(3). For example, a person might have been removed from office because of a "failure to perform the duties of the office" as a result of a drug addiction. Even if the person has since been rehabilitated, it could easily be seen to be in the public interest to make the reinstatement conditional on the person abstaining from the use of drugs. It might also be advisable in innumerable situations to make reinstatement conditional on the person continuing ongoing medical or psychological treatment. An interpretation that supports the power to protect the public in this manner while still permitting the applicant to practice is to be preferred to an interpretation that takes the "all or nothing" approach suggested by the Hearing Panel.

[39] The failure of the Hearing Panel to appreciate that conditions could be attached to the restoration of a licence compromised the reliability of its ultimate conclusion that restoring Mr. Evans' licence was not in the public interest. This would have been sufficient, in and of itself, to warrant setting aside the Hearing Panel's decision.

Standard of proof

[40] The Appeal Panel's determination as to the standard of proof to be applied is a legal question of general application, and not one within its core area of expertise. The Appeal Panel was required to be correct in its ruling that the simple civil standard of the balance of probabilities applied.

[41] The Appeal Panel was correct on this question, both in the result and in its analysis. As the Appeal Panel noted, the evidential standard of "clear and convincing proof based on cogent evidence" (often referred to as the "Bernstein" standard based on the landmark case of Bernstein and College of Physicians and Surgeons (Re) (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447, [1977] O.J. No. 2182 (Div. Ct.)) was developed, and continues to be applied, in the context of a professional discipline proceedings and relates to the quality of the evidence required of the prosecution in order to sustain the serious type of allegations sufficient to remove a person's ability to earn his livelihood in his chosen profession. The Bernstein standard is still the civil standard of proof on the balance of probabilities. However, the Bernstein requirements with respect to the quality of evidence required were meant to be a shield for the protection of individuals against whom serious [page178] accusations were made and who were facing serious consequences as a result. There can be no rational basis for imposing the Bernstein standard to an applicant seeking restoration. That does not mean that the person seeking restoration does not bear a heavy burden. The test to be met for restoration ensures that persons guilty of past misconduct are not restored without due regard to the protection of the public. However, there is no precedent for imposing on top of that difficult test the additional burden of meeting the test based on the enhanced Bernstein standard.

[42] I further agree with the finding of the Appeal Panel that the Hearing Panel's error as to the standard of proof undermined its decision to such an extent that its conclusions could not stand.

Burden of proof

[43] The Society argues that the Appeal Panel erred in law by placing the burden of proof on the Society rather than on the applicant. As I have already noted, a close analysis of the Appeal Panel's reasons supports the conclusion that when it conducted its own analysis of the evidence, it accepted the position of the parties that the burden was on the applicant to prove his membership should be restored. This is in accordance with the reasons of the Hearing Panel that once an initial burden on the Society of proving a prima facie case warranting a hearing has been met, the burden is on the applicant to demonstrate entitlement to restoration. In my opinion, the Hearing Panel was correct in its conclusion on this point, and the Appeal Panel therefore, in the result, placed the burden properly on Mr. Evans.

[44] However, the Appeal Panel's obiter comments on this issue, as well as its occasional confusion in terminology as between the "standard" of proof and the "onus" of proof, has considerably muddied the waters as to who has the burden of proof. Given the fact that this is a case of first impression, it is appropriate to comment on the burden of proof, even though it is not strictly necessary to do so.

[45] It is arguable that the question of which party bears the onus of proof under s. 31(3) is a question that relates to the interpretation of the constituent statute, to which the more deferential reasonableness standard would apply. It is also arguable that this is a question of law of general application and is required to be correct. However, even applying the more deferential standard, I come to the same conclusion. The burden should be on the applicant to prove restoration is appropriate.

[46] The process for restoration of a licence is commenced by the person seeking to have the privileges restored. Unless required by [page179] the context of the legislative scheme, as a general proposition, he who seeks a privilege bears the onus of proving it should be granted. Situations under s. 31(3) only arise where there has been misconduct sufficiently egregious that the person either resigned or was removed from office. The public interest requires that such a person only be restored to practice if that would not compromise the integrity of the system or put members of the public at risk should there be a recurrence of the offending behaviour. The situation is closely analogous to a disbarred lawyer applying for readmission. There can be no doubt that the onus is on the disbarred lawyer to show why he or she would be readmitted. There can be no rational basis for placing the onus on the Society to prove the contrary in the situation of a former judge guilty of misconduct who is effectively in the same situation.

[47] As a practical matter, imposing such a burden on the Society is simply unworkable. Typically, the person seeking restoration would call evidence of good character from people who knew him well both before and after the misconduct and testimony of former clients as to the degree of trust they placed in the person as a lawyer. Also, typically, there will be testimony from friends and relatives as to the extent to which the person has been rehabilitated and the extent to which he has suffered already as a result of the removal from office. Often there will be expert testimony from medical doctors or psychiatrists as to the impact the events have had on the person and whether the person presents a risk to re-offend. All of this type of evidence is uniquely available to the person seeking restoration and not available to the Society without extraordinary investigative efforts and/or invasions of privacy.

[48] As a question of law, policy and practicality, the burden belongs on the party seeking restoration of privileges, as indeed is evident from the position both parties took before the Hearing Panel and the Appeal Panel. The Appeal Panel's obiter suggestion to the contrary is not correct, nor do I consider it to be a reasonable interpretation of the legal issues involved. However, since the Appeal Panel did not actually put the burden on the Society, this error does not affect the result.

Ontario Judicial Council's findings of credibility

[49] The Appeal Panel held that the Hearing Panel erred in law by considering the credibility findings of the Ontario Judicial Council to be an additional indication of bad character beyond the Council's findings of misconduct.

[50] There can be situations in which a finding of credibility made in one court proceeding can be relevant to character in a [page180] completely separate proceeding. However, those situations are rare and typically arise only where there has been a clear finding of fabricated evidence or perjured testimony in a prior hearing: R. v. Ghorvei (1999), 1999 19941 (ON CA), 46 O.R. (3d) 63, [1999] O.J. No. 3241 (C.A.), at paras. 29-31. Such a finding might well be relevant to considering the character of a person seeking readmission to the practice of law. However, these are not the sort of credibility findings that were made by the Ontario Judicial Council in this case. Rather, the Ontario council simply did not accept the testimony of Mr. Evans on certain points, and disbelieved some of his evidence. Those findings were implicit in making the factual determinations that the judicial council reached regarding the allegations against Mr. Evans. The mere fact that the judicial council did not believe all of Mr. Evans' evidence is not a factor that ought to have been used by the Hearing Panel as an additional indication of bad conduct or poor character. The Appeal Panel was correct in holding that the Hearing Panel erred in law in that regard.

Test for restoration

[51] In determining the appropriate test for restoration of privileges, the Appeal Panel was interpreting its own statute in a subject area that includes significant policy considerations and is squarely within the expertise of the tribunal. As such, this court can only interfere if the Appeal Panel's interpretation is unreasonable. However, the Appeal Panel does not itself owe deference to the Hearing Panel on this point, as the Appeal Panel has the same expertise as does the Hearing Panel. If it sees fit, the Appeal Panel is entitled to substitute its own test for that of the Hearing Panel.

[52] With the greatest of respect to the majority of the Appeal Panel, it is difficult to discern from its reasons precisely what test for restoration it considered applicable under s. 31(3). Part of the difficulty is that the Appeal Panel intertwined the test for restoration with the concepts of onus of proof and standard of proof (occasionally mislabeling those two terms). However, the Appeal Panel stated, at para. 14, that "it cannot be said that the factors considered by the Hearing Panel were irrelevant or constituted legal error". It would appear, therefore, that the Appeal Panel accepted the relevance of the seven factors identified by the Hearing Panel, taken from the test for readmitting a disbarred lawyer, as being relevant to restoration under s. 31(3). The Appeal Panel, however, took issue with the test applied by the Hearing Panel in two respects, which it referred to, at para. 14, [page181] as "the inappropriate approach to the hearing and disregard of the disbarment issue".

[53] What the Appeal Panel referred to as "the inappropriate approach to the hearing" would appear to be based, at least in part, on the nature of the question to be asked on a restoration hearing. The Appeal Panel stated the appropriate question to be"Does the conduct . . . which led to the termination of the official position . . . disentitle the applicant from the right to resume their legal career, which has been in abeyance, when considered in all of the relevant circumstances?" It is not clear to what extent the formulation of this question is caught up in the Appeal Panel's incorrect view of which party bears the burden of proof. It would seem that the Appeal Panel did not view this question as necessarily putting the burden of proof on the Society. In its analysis on the merits, the Appeal Panel asked itself this question, but nevertheless made its finding based on whether the applicant had persuaded them that his membership should be restored. However, in my opinion, the manner in which this question is framed is troubling as it may cause confusion about where the burden of proof lies. As I have already noted, the Appeal Panel erred in law in its analysis of the burden of proof. The correct statement of the burden of proof is in the Hearing Panel's reasons. In my view, a better formulation of the question, clarifying who bears the burden, would be"Should the applicant be entitled to resume his or her legal career, notwithstanding the conduct that led to the termination of the official position, when considered in all the relevant circumstances?" However, since this issue is not really part of the test for restoration itself, and since the proper burden of proof was applied, the Appeal Panel's error on this point does not affect the reasonableness of the Appeal Panel's analysis of the overall test to be applied.

[54] The second exception that the Appeal Panel took to the Hearing Panel's analysis of the applicable test was with respect to the "disbarment issue". The Appeal Panel held that an additional "significant" consideration is whether the conduct that resulted in the applicant being removed from office would have been sufficient to result in disbarment if that conduct had taken place when the applicant was a lawyer. Although this factor certainly has relevance in terms of assessing the seriousness of the conduct involved, it may not be reasonable to treat it as a "significant" factor. Indeed, the Appeal Panel itself states (at para. 13): "This is not a determinative issue because the appellant's status, in this case as a judge at the time of the misconduct, remains relevant to measuring the seriousness of the transgression." I take from this that the Appeal Panel recognized that restoration [page182] of privileges could be refused in an appropriate case where the public interest required it, even in circumstances where the conduct would not have been sufficiently serious to result in disbarment for a lawyer.

[55] In my view, in considering restoration under s. 31(3) it is reasonable to apply a test that is similar to the test for readmission of a disbarred lawyer, with appropriate adjustments. It is also reasonable to take into account the seriousness of the conduct involved. In a readmission case, the seriousness of the conduct is already known to be sufficient to warrant disbarment. However, removal from office as a judge may cover a greater spectrum warranting a separate consideration of seriousness. In this context, it is not inappropriate to take into account how the conduct would have been treated if engaged in by a lawyer, as long as that is done while also bearing in mind the significance of a judge engaging in the conduct. Certain types of conduct could result in a judge being removed from office that would not be inappropriate at all for a lawyer (e.g., publicly calling for the repeal of legislation or speaking out publicly in support or against the position taken by a political party). Other conduct, while also wrong for a lawyer, is even more egregious when committed by a judge. An example would be a conviction for a minor criminal offence or conduct which would be an abuse of the power vested in the judge. The fact that similar conduct might not be grounds for disbarring a lawyer may simply be a reflection that it is the nature of being a judge that made the conduct particularly blameworthy. That does not necessarily make it more excusable when it comes to a consideration of restoration to the practice of law.

[56] However, a close analysis of the reasons of the Appeal Panel leads me to the conclusion that this is the test it identified and applied. I therefore see no basis to interfere with the decision of the Appeal Panel on this ground. Decision on the merits

[57] The appellant argues that the Appeal Panel erred by failing to give any deference to the findings of fact made by the Hearing Panel. Unquestionably, the Hearing Panel was in a better position to make findings of fact. It heard and saw the witnesses, particularly Mr. Evans himself. The Hearing Panel was better able to assess credibility and character and to determine the extent to which Mr. Evans demonstrated insight into and remorse for his prior conduct. However, I accept the point made by the Appeal Panel that the errors of law made by the Hearing Panel compromised any finding of fact it made. The Hearing [page183] Panel was of the view that its only option was to grant the application or refuse it. It was from this perspective that it assessed all of the evidence, without considering at all the possible options of restrictions on Mr. Evans' return to practice. Even more problematic was the standard of proof applied by the Hearing Panel. All of its factual findings are tainted by the application of the enhanced Bernstein standard of proof. I therefore find that the Appeal Panel did not err in failing to accord deference to the Hearing Panel's findings of fact. I agree that the errors of law by the Hearing Panel were so fundamental that they may have coloured its conclusions on the facts.

[58] The Appeal Panel sits in an appellate capacity, although it does have jurisdiction to substitute its own factual findings for those of the Hearing Panel. The Appeal Panel makes no reference in its decision as to the standard of review it applied to the decision of the Hearing Panel. It would have been preferable if the Appeal Panel had identified the standard it applied to its various considerations of the Hearing Panel. However, its failure to do so does not constitute reversible error in this case. Its decision was correct on the two key legal errors made by the Hearing Panel (standard of proof and jurisdiction to impose conditions). It was not correct in its ruling on the burden of proof, but applied the burden of proof identified by the Hearing Panel and therefore did not fall into error. Having made those legal determinations, it then started afresh and made its own decision on the merits, which as I have stated above, it was entitled to do in the circumstances. Accordingly, I find that the failure to identify the standard of review applied has had no impact on the analysis.

[59] Having found the fundamental legal errors that it did, it would have been open to the Appeal Panel to state the correct law and then remit the case to a different Hearing Panel for a determination on the merits in light of the correct legal test. Indeed, in my view, because of the sensitive nature of the evidence involved and the role of credibility, this would have been a preferable course of action. However, the Appeal Panel does have the power under s. 49.35 of the Act to make any order that the Hearing Panel ought to have made. In this case, both parties before the Appeal Panel urged the panel to "bring finality to this matter and not to order a new hearing in the event [it] found legal error requiring the Panel's decision to be set side": reasons, para. 36. Having urged the Appeal Panel to take this course of action, it is not open to the Society to now take issue with the factual determinations made by the Appeal Panel or with the Appeal Panel's failure to defer to any of the findings of fact made by the Hearing Panel. [page184]

[60] The reasons given by the majority of the Appeal Panel for its decision on the merits are succinct. The Appeal Panel did not clearly articulate the test it was applying. However, the Appeal Panel accepted the relevance of the factors identified by the Hearing Panel, even if it did not go through each and every one of them in its analysis. The Appeal Panel also balanced the various interests of the individual, the public interest and maintaining the integrity of the judicial system. I am not able to say that the Appeal Panel proceeded on a wrong legal basis or applied the wrong legal test. The result reached, including the relatively lenient condition imposed as compared to the conditions to which Mr. Evans had proposed before the Hearing Panel, is one within a reasonable range of options available to the Appeal Panel: Dunsmuir, at para. 47.

[61] I note as well that the Society has no right of appeal on questions of fact.

[62] I see no reviewable error in the Appeal Panel's decision on the merits. G. Conclusion

[63] In the result, the Society's appeal is dismissed. If the parties are not able to agree on costs of this appeal, written submissions may be addressed to the court within 30 days of the release of these reasons.

Appeal dismissed.