Shore v. Law Society of Upper Canada
96 O.R. (3d) 450
Ontario Superior Court of Justice, Divisional Court, J. Wilson, Swinton and Low JJ.
April 21, 2009
Professions -- Barristers and solicitors -- Admission -- One ground of complaint against applicant law student withdrawn before admission hearing and another ground abandoned by counsel for Law Society during closing argument -- Applicant admitting that she destroyed evidence which was relevant in criminal proceedings and misled Crown about existence of that document -- Hearing Panel of Law Society finding that applicant had shown remorse and insight into her behaviour and that she was of good character and qualified to be admitted to Law Society -- Hearing Panel awarding costs of hearing to applicant under rule 14.03 on ground that it appeared that proceedings were unwarranted -- Appeal Panel overturning that order -- Application for judicial review [page451] of Appeal Panel's decision dismissed -- Standard of review of that decision being reasonableness -- Appeal Division reasonably concluding that hearing was warranted as there were serious questions in issue about applicant's judgment and insight.
The applicant destroyed a copy of a neurologist's report relating to her deceased daughter in 1998. Two nurses were subsequently charged with criminal negligence causing death as a result of the applicant's daughter's death. The applicant misled the Crown in an effort to cover up her destruction of the copy of the report. She received another copy of the report in 2002, by which time she was attending law school, and destroyed that copy as well. Ultimately, she advised the Crown that she had withheld the report, and the Crown withdrew the criminal charges. Defence counsel for the nurses filed a complaint with the Law Society, questioning whether the applicant should be admitted to membership. The matter was referred to a hearing before a Hearing Panel of the Law Society. One of the grounds of complaint was withdrawn before the hearing and another ground was abandoned by counsel for the Law Society during closing argument. The outstanding complaint related to the applicant's destruction of the copies of the report. The Hearing Panel found that the applicant had shown remorse and insight into her behaviour and that she was of good character and qualified to be admitted to the Law Society. The applicant was awarded her costs under rule 14.03 on the basis that it appeared that the proceedings were unwarranted. An Appeal Panel overturned the costs order. The applicant brought an application for judicial review of that decision.
Held, the application should be dismissed.
The Appeal Panel correctly identified the governing standard of review of the Hearing Panel's decision as reasonableness with respect to findings of fact or mixed fact and law and correctness with respect to questions of law. The standard of review of the Appeal Panel's decision was reasonableness. The Hearing Panel's failure to take into consideration the public interest role of the Law Society was an error in principle. Where there is proven serious misconduct which reasonably raises questions about the good character and integrity of the applicant, it is in the public interest and in conformity with the Society's mandate to protect the public interest to require a hearing, where the applicant has the onus to prove good character. The Appeal Panel found that the decision that the hearing was unwarranted was unreasonable, as there were serious issues still in issue before the hearing about the applicant's judgment and insight, bringing into question her good character. Moreover, in reaching the decision that the applicant was of good character, the Hearing Panel relied in part on evidence which was presented at the hearing. The Appeal Panel's conclusion that an admission hearing was warranted was reasonable.
APPLICATION for judicial review of a decision of the Appeal Panel of the Law Society of Upper Canada setting aside the costs order of the Hearing Panel.
Cases referred to Law Society of Upper Canada v. Evans (2008), 2008 34276 (ON SCDC), 91 O.R. (3d) 163, [2008] O.J. No. 2729, 295 D.L.R. (4th) 281, 83 Admin. L.R. (4th) 86, 168 A.C.W.S. (3d) 197, 240 O.A.C. 1 (Div. Ct.); 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, 80 Admin. L.R. (4th) 1 (Div. Ct.) Statutes referred to Law Society Act, R.S.O. 1990, c. L.8, ss. 4.2 [as am.], 27 [as am.], (2) [as am.], 27(4) [as am.], 49.28 [as am.], 49.33 [as am.], (2) [as am.], 49.35 [as am.] [page452] Authorities referred to Law Society of Upper Canada, Rules of Practice and Procedure, rules 14, 14.03, 14.04
Benjamin Zarnett and Alexa Abiscott, for applicant. Paul Stern and David Landesman, for respondent.
The judgment of the court was delivered by
SWINTON J.: -- Overview
[1]
Overview
The applicant, Sharon Ellen Shore, seeks judicial review to quash the order of an Appeal Panel of the Law Society of Upper Canada (the "Society") dated April 24, 2008. The Appeal Panel overturned the order of a Hearing Panel dated June 28, 2007 awarding the applicant costs of a hearing to determine whether she should be admitted to membership in the Society.
2The issue in this application is whether the Appeal Panel inappropriately intervened to overturn the Hearing Panel's award of costs. Background Facts
[3]
Background Facts
The applicant entered Osgoode Hall Law School as a mature student in 2002 and graduated in 2005. Prior to attending law school, she had completed her Certified General Accountant studies, had worked successfully as an accountant and then run a family business employing 12 people.
4The applicant successfully completed her articles with a Toronto law firm in July 2006. She also completed the Bar Admission Course, including the ethical testing requirements.
5Before the applicant's entry into law school, she had experienced the tragic death of her ten-year-old daughter Lisa. The child had fractured her tibia in a schoolyard accident in February 1998. Over the course of the following months, she was seen at the Toronto Hospital for Sick Children ("HSC") and the Children's Hospital in Boston ("BCH") because of complaints of severe pain that were uncharacteristic of a simple fracture. Lisa was admitted to HSC on October 21, 1998, and she died unexpectedly the next morning, after morphine had been administered. [page453]
6In November 1998, the applicant requested and was provided with copies of Lisa's records from BCH for the period September 30 through October 2, 1998. These records included a neurologist's note dated October 4, 1998 that, in the applicant's opinion, gave an unfavourable assessment of Lisa's condition and tainted her memory. The applicant destroyed this note.
7Three separate legal proceedings ensued, focusing on the conduct of the two nurses in charge of Lisa's care: a coroner's inquest, a criminal preliminary inquiry and a disciplinary proceeding before the Ontario College of Nurses.
8The coroner's inquest concluded in February 2000 that Lisa's death was a homicide. The Toronto Police Service ("TPS") began investigating events after the inquest verdict. The applicant and her husband retained a forensic documents examiner to analyze the nurses' notes to find out if those notes had been altered.
9In October 2001, the two nurses were charged with criminal negligence causing death. Over the following months, defence counsel requested disclosure from the Crown, including access to Lisa's BCH medical records and the report of the handwriting analyst, if such existed.
10On March 22, 2002, the applicant wrote to Detective Sergeant Davis of the TPS confirming that she had given him all the BCH records for 1998. Crown counsel, on the information of Detective Sergeant Davis, informed defence counsel that there was no handwriting report.
11In early June 2002, Detective Sergeant Davis spoke to the applicant about the BCH records and made a note that she agreed to request all the records. On June 13, 2002, the applicant wrote to BCH requesting records for May 1998 only. After defence counsel pressed for further documents, the applicant wrote to BCH requesting records for September 30 to October 2, 1998. She subsequently made an amended request for all records from June 1, 1998 to the end of the file.
12In early September 2002, the applicant began law school. On September 13, 2002, she received the BCH records, including a copy of the neurologist's report from the October 4, 1998 consultation. Again, she removed and destroyed the report. She then sent the remaining records to Detective Sergeant Davis.
13When defence counsel pressed to find out if there were further hospital records, the applicant wrote to Detective Sergeant Davis in late December 2002 saying that there were no other records.
14On January 11, 2003, the applicant wrote to Crown counsel, attaching a copy of her letter to Detective Sergeant Davis. [page454]
15The preliminary inquiry began April 15, 2003. The first witness was the applicant's husband. During cross-examination, he gave evidence that the Shores had received the report of a handwriting expert. That report was provided to the Crown the following day.
16On April 24, 2003, the applicant met with Crown counsel at her request, and she advised of the consultation with a neurologist in Boston on October 4, 1998 and the fact she had thrown out the record of that visit.
17Subsequently, the Crown withdrew the criminal charges for a number of reasons, including the fact that the applicant's credibility had been irreparably damaged because she had withheld the neurologist's report. In the opinion of the Crown, she was a material witness in the prosecution of the criminal charges. The decision to withdraw the charges was also informed by the fact that other Crown witnesses had not given the evidence the Crown anticipated, or indicated that their evidence would not be helpful to the prosecution, and a Crown expert had refused to testify.
18The College of Nurses proceeding resulted in a finding in 2005 that the two nurses had been guilty of professional misconduct.
19In December 2005, defence counsel for the nurses in the criminal proceedings filed a complaint with the Society, questioning whether the applicant, then an articling student, should be admitted to membership. The complaint raised four issues. The first two dealt with public comments made by the applicant. A third suggested that counsel for the nurses during the criminal proceedings had been misled by the applicant respecting the existence of a forensic handwriting report. A fourth had to do with the applicant's failure to turn over the neurologist's note to police during the criminal proceedings.
20In March 2006, the Society requested a response from the applicant. With respect to the neurologist's note, she stated,
I have already admitted in my book that what happened was an error in judgment, one made by a distraught mother who had lost a young child under tragic circumstances. I eventually came forward and admitted this error, entirely of my own volition. I have taken full responsibility for it.
21While in law school, in 2005, the applicant published a book, No Moral Conscience, about Lisa's death and subsequent events. In her response to the Society, she quoted a passage from the book relating to her request to BCH for a copy of the medical records (at p. 345):
The emphasis on the Boston records, however, did remind me of a painful moment I had long buried and forgotten: the neurologist's note I had torn up [page455] in grief and anger a few weeks after Lisa died. The doctor had written that Lisa was suffering from a conversion disorder, meaning he believed that her problems existed only in her mind. The neurologist had made a psychiatric diagnosis that he was not qualified to make, and one that was terribly wrong.
I knew nothing in the neurologist's note mattered to the case . . . .
I had convinced myself that the note was unimportant and irrelevant.
The worst mistake of my life was bringing Lisa to the Hospital for Sick Children on October 21, 1998. Not saying anything about the neurologist's note was the second.
22Pursuant to s. 27(2) of the Law Society Act, R.S.O. 1990, c. L.8 (the "Act"), an applicant for admission to the Society "shall be of good character". Pursuant to s. 27(4), an application for admission may be refused only by a Hearing Panel after holding a hearing.
23After the receipt of the complaint and the applicant's response and an investigation by Society staff, the Proceedings Authorization Committee referred the applicant's application for admission to a Hearing Panel. The Admission Hearing
[24]
The Admission Hearing
On July 17, 2006, just before the hearing was to commence for the first time, counsel for the Society indicated to the Hearing Panel that he would not proceed with the two grounds of the complaint dealing with the applicant's exercise of free speech. In his words, they "do not constitute evidence of bad character and they would not constitute professional misconduct in respect of a member or student member".
25The admission hearing actually began on August 14 and continued to August 17, 2006. During closing argument, counsel for the Society abandoned the third ground of the complaint relating to the disclosure of the forensic document analysis report, as there was no evidence of wrongdoing on the part of the applicant.
26Counsel for the Society took no position, at the conclusion of the hearing, with respect to the fourth ground of the complaint, the destruction of the note. However, he did make submissions regarding the evidence and relevant questions for the Hearing Panel in making its findings with respect to the note.
27The Hearing Panel concluded that the evidence, taken as a whole, including the testimony of a number of character witnesses, established that the applicant has been, throughout her adult life and since 2002, a person possessed of "the highest integrity, candour, empathy and honesty" (Reasons, paras. 47, 48). [page456]
28With respect to what the applicant had done respecting the neurologist's note during the criminal proceedings, the Hearing Panel said the following [Reasons, para. 49]:
We do not condone what the applicant did. It was a wrong of the most serious kind. The suppression of evidence in a serious criminal proceeding with the knowledge that it should have been disclosed and with the knowledge that the defence, however mistakenly, thought the document was relevant to their case, is grave conduct. The suppression of evidence is a perversion of the administration of justice and the rule of law. The consequences of such misconduct can be catastrophic, resulting in the wrongful conviction of an innocent person, and in this case, the consequences were severe in that serious criminal charges were lost, in part, because of the applicant's failure to disclose the evidence.
29Nevertheless, the Hearing Panel found that the applicant had shown great remorse through her evidence. As well, she had shown that she had thorough insight into her wrongdoing. They accepted her evidence and that of her character witnesses that the misconduct was an aberration, concluding that she was of good character and qualified to be admitted to the Society. The Costs Decision
30Section 49.28 of the Act provides that subject to the rules of practice and procedure, the costs of a hearing are a matter of discretion for the Hearing Panel.
31Rule 14 deals specifically with costs. It provides, in rule 14.04, that costs can be awarded to the Society where a tribunal has made a finding against a party that is adverse to the party.
32Rule 14.03 deals with the award of costs against the Society, limiting an award to the situation where the tribunal finds the proceedings against a party were unwarranted. The rule stated, at the time of this hearing:
In admission, conduct, capacity, professional competence or non-compliance proceedings, where it appears that the proceedings were unwarranted, the tribunal may order that such costs as it considers just be paid to the person subject to the proceeding by the Society and any other party to the proceeding. (Emphasis added)
33The Hearing Panel awarded the applicant her costs on a substantial indemnity basis in the amount of $91,500 for fees plus GST plus disbursements of $2,031.71.
34The Hearing Panel pointed out that two of the grounds of the complaint were abandoned one month before the hearing got underway, and a third was abandoned during closing argument. It found that the proceedings with respect to all four grounds of the complaint were not warranted. [page457]
35With respect to the fourth ground, the destruction of the note, the Hearing Panel observed that the wrongdoing had been admitted by the applicant. They noted that a "good portion" of the character evidence was provided to the Society in March 2006. Moreover, the Society did not tender any evidence in contradiction. They also found that the applicant "fully addressed the Law Society's concerns regarding her character in March 2006 and before the admission hearing" (at para. 98). In their view, "[t]he test for good character had been met by the applicant before this Hearing commenced" (at para. 100).
36In the Hearing Panel's view, the Society had proceeded with the hearing "notwithstanding overwhelming evidence answering the question of good character and admission of wrongdoing and remorse" (at para. 105).
37As they were of the view that proceedings were unwarranted, should never have been commenced, and the allegations of fraud, dishonesty and libel were extremely serious, they awarded costs on a substantial indemnity basis. The Appeal Panel's Decision
[38]
The Appeal Panel's Decision
The Society appealed the award of costs granted by the Hearing Panel. It did not appeal the finding that the applicant was of good character and should be granted membership in the Society.
39Subsection 49.33(2) provides that the Society may appeal a final decision of a Hearing Panel to an Appeal Panel only on a question that is not a question of fact alone, unless the appeal is from an order of costs granted pursuant to s. 49.28, in which case the Society may appeal on any grounds.
40The jurisdiction of the Appeal Panel is set out in s. 49.35. After holding an appeal, it may make any order or decision that ought or could have been made by the Hearing Panel.
41The Appeal Panel set out the standard of review applicable in an appeal from a Hearing Panel: on questions of fact or mixed fact and law, the standard is reasonableness. On questions of law, the standard is correctness.
42Both the Hearing and Appeal Panels applied jurisprudence that interpreted "unwarranted" to mean "without reasonable justification, patently unreasonable, malicious, taken in bad faith, or for a collateral purpose". In the opinion of the Appeal Panel, the Hearing Panel, in applying rule 14.03, erred in law by failing to consider the public interest in an admission hearing and made unreasonable findings of fact.
43With respect to the Hearing Panel's failure to take into account the public interest, the Appeal Panel took the position [page458] that the application of rule 14.03 to an admission hearing was different from its application to conduct proceedings (at para. 76). In the view of the Appeal Panel [at para. 84],
. . . the Society is entitled to consider, in its discretion, particularly where the admitted misconduct is serious, that the public interest may support the good character determination being made by a Hearing Panel at a public hearing.
44The Appeal Panel noted that even where misconduct is admitted, there may still be reasons for a hearing -- for example, to determine whether the misconduct is aberrant or explained by unique circumstances and to assess the applicant's credibility and thus determine the level of insight into the misconduct and its impact. The Appeal Panel concluded that the Hearing Panel erred in law in holding that there was no difference between admission and other proceedings for the purpose of applying rule 14.03, and it erred in law in implicitly holding that the burden of proof on the applicant was irrelevant (at para. 90).
45The Appeal Panel concluded that the Hearing Panel also misdirected itself in law with respect to the way in which the public nature of a s. 27 hearing should inform the Society's determination whether to proceed with a hearing (at para. 91). Earlier, the Appeal Panel had stated that the Society, in determining whether to hold a hearing where there has been serious misconduct, must ask if there are questions about the applicant's good character that, in the public interest, should be aired in a public hearing before a panel that includes lay representation and that will provide reasons for its assessment (at para. 87). At para. 94, the Appeal Panel stated,
More important, the Hearing Panel erred in law in failing to direct itself to the important value of having serious misconduct, and its relationship to the applicant's good character, aired at a public hearing.
46The Appeal Panel went on to consider the findings of fact made by the Hearing Panel and concluded that the finding that the hearing was unwarranted was not reasonable. It stated (at para. 99):
In our respectful view, the Hearing Panel's findings that the paper record available to the Society overwhelmingly demonstrated that the applicant was of good character were unreasonable, and tainted by the Panel's misdirection as to the law.
47The Appeal Panel described the appellant's misconduct:
(i) knowingly suppressing the neurologist's note on September 13, 2002; (ii) providing a deceptive response to Mr. Goody [Crown counsel] after the December 18, 2002 pre-trial; (iii) writing a deceptive letter to Det. Sgt. Davis [page459] on December 31, 2002, explaining why no additional records existed; (iv) enclosing that deceptive letter to Mr. Goody on January 11, 2003, which would be disclosed to the defence; (v) failing generally to disclose the suppressed note to the authorities from September 13, 2002 to April 24, 2003.
48While the applicant relied on her book as an answer to the allegations, the Appeal Panel noted that the book spoke about the destruction of the note in 1998 and it did not describe the later destruction of the note in 2002 and her conduct respecting the police and the Crown. Moreover, her response "did not articulate the serious consequences to the administration of justice resulting, in part, from her misconduct" (at para. 102).
49The Appeal Panel took the view that [at para. 103]
. . . it would be unreasonable to find that the contents of her response to the complaint or her book do not fairly raise questions about her insight and candour concerning the misconduct that invite consideration. It would also be unreasonable to find that the questions raised by counsel for the Society in his cross-examination of the applicant did not fairly arise from the evidence available to the Society, or depending on the credibility of the responses, would not be relevant to the applicant's present good character. The fact that the applicant, to the satisfaction of the Hearing Panel, responded to all these questions does not detract from that conclusion. On the contrary, it reinforces the importance of the evidence tendered at the s. 27 hearing.
50The Appeal Panel also observed that the Hearing Panel's reasons showed extensive reliance had been placed on the evidence in the oral hearing, thus undermining their conclusion that the hearing was unwarranted. They also noted that the Hearing Panel had failed to address whether the factual questions raised by the Society justify the hearing.
51The Appeal Panel concluded that the errors of law and the unreasonable findings were intermixed (at para. 107):
In finding that the proceedings were unwarranted and the evidence of good character presented to the Society overwhelming from the outset, the Hearing Panel failed to direct itself in law to the appropriate considerations, and as noted earlier, misconceived how the determination of good character publicly by a Hearing Panel should figure prominently in its evaluation of whether the proceedings were unwarranted.
52The Appeal Panel went on to consider whether the Hearing Panel could have reasonably concluded that part of the proceedings was unwarranted. It concluded that the Hearing Panel unreasonably found that the Society had improperly failed to complete its investigation before seeking authorization to proceed, as the evidence before the Hearing Panel did not permit such a conclusion (at para. 116).
53With respect to the disclosure of the forensic document, the Appeal Panel concluded that the Hearing Panel had evidence on [page460] which it could reasonably conclude that the exploration of this alleged misconduct at the hearing was unwarranted. However, the cross-examination related to this issue did not take up a large part of the total cross- examination and it was relevant to connections between the forensic document and the applicant's conduct concerning the neurologist's report (at para. 126).
54The Appeal Panel allowed the appeal and set aside the award of costs, finishing its reasons with the following statement (at para. 132):
The interplay between Rule 14.03 and s. 27 of the Act cannot be interpreted in a way that deters the Society, by the risk of costs, from vigorously but fairly advancing the public interest, whether that means opposing an application or ultimately taking no position on it. The Issues
[55]
The Issues
There are three issues in this application: (1) What is the appropriate standard of review by the Appeal Panel? (2) What is the appropriate standard of review in this application for judicial review? (3) Was the decision of the Appeal Panel unreasonable?
Issue no. 1: What is the appropriate standard of review by the Appeal Panel?
[56]
Issue no. 1: What is the appropriate standard of review by the Appeal Panel?
The applicant submits that the Appeal Panel was required to review the decision of the Hearing Panel on a deferential standard, as the decision of the Hearing Panel involved the interpretation of a rule under the Law Society Act, its constituent statute. Moreover, the application of that interpretation to the facts required deference by the reviewing body.
57The Society submits that the standard of review with respect to questions of fact is reasonableness, but with respect to the interpretation of the Act and rules, the Appeal Panel is not required to show deference, as the Hearing Panel has no greater expertise than the Appeal Panel in interpreting the Act.
58I agree with the Society's submissions.
59This court has held that an Appeal Panel should review the decisions of Hearing Panels on matters of fact and conclusions about credibility on the basis of reasonableness (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 (Div. Ct.), at para. 40). [page461]
60However, the Appeal Panel owes no deference to the Hearing Panel's interpretation of the Law Society Act and rules, as the Appeal Panel and the Hearing Panel have the same expertise in interpreting these provisions (Law Society of Upper Canada v. Evans (2008), 2008 34276 (ON SCDC), 91 O.R. (3d) 163, [2008] O.J. No. 2729 (Div. Ct.), at para. 37). Appeal Panels have a supervisory jurisdiction over Hearing Panels, and one of their functions is to oversee the orderly development of jurisprudence relating to proceedings before the Society.
61Therefore, the Appeal Panel correctly identified the governing standard of review as reasonableness with respect to findings of fact or mixed fact and law and correctness with respect to questions of law.
Issue no. 2: What is the appropriate standard of review in this application for judicial review?
[62]
Issue no. 2: What is the appropriate standard of review in this application for judicial review?
The applicant submits that this court should review the Appeal Panel's decision on a standard of correctness because the Appeal Panel's suggestions that the Hearing Panel erred in law are legal matters on which the Appeal Panel is required to be correct. Moreover, an Appeal Panel's factual determinations are not entitled to deference, when it has reversed the factual findings of the tribunal of first instance.
63I disagree. The Appeal Panel's decision with respect to costs was a question of mixed fact and law, requiring it to apply the provisions of the Society's cost rules to the record and the reasons before it. This court has held the standard of review with respect to such questions is reasonableness (Law Society of Upper Canada v. Evans, supra, at paras. 13, 36).
Issue no. 3: Was the decision of the Appeal Panel reasonable?
64Section 49.28 of the Act confers discretion on a panel to award costs of a proceeding before it "subject to the rules of practice and procedure". Rule 14 governs costs, with rule 14.03 permitting an award of costs against the Society where admission, conduct, capacity or competence proceedings were "unwarranted". Thus, under this regime, costs against the Society do not follow the event.
65Both the Hearing Panel and the Appeal Panel applied the same test to determine whether proceedings were "unwarranted", asking whether there was "no reasonable justification for the hearing". Such a determination must be made without the benefit of hindsight.
66The applicant submits that the Appeal Panel was incorrect in finding the Hearing Panel erred in law. The first error is [page462] said to be the Appeal Panel's interpretation of rule 14.03. The applicant argues that the Appeal Panel held that where previous serious misconduct is an admitted part of an applicant's background, a public hearing is warranted even if it is clear that notwithstanding the misconduct, the applicant will be admitted to the Society because of evidence of present good character.
67The applicant takes the position that the proper approach, in determining whether a hearing was unwarranted, is to focus on results. The question to be asked is whether there was a reasonable prospect that the person applying for admission would not be admitted. A hearing would be unwarranted if the answer to that question is no. In the present case, the applicant argues that the result of the admission hearing was "pre-ordained": clearly, the applicant would succeed in showing that she was of good character at the time of the hearing.
68In my view, the Appeal Panel does not go so far as the applicant suggests. It did not say that a hearing would be warranted even where it is clear that the result will be admission as a member. Rather, the Appeal Panel set out a number of factors that interplay when the Society determines whether an admission hearing should be held.
69The Appeal Panel acknowledged that there may be cases where a hearing would not be necessary, despite serious misconduct (para. 87) -- although it commented that such cases would be rare (para. 89). The Appeal Panel stated that the applicant's prospect of success in the hearing was, indeed, a relevant consideration. For example, if the Society proceeded to an admission hearing on the basis of alleged misconduct when there was no reasonable prospect of proving that misconduct, the proceedings might well be found to be unwarranted (paras. 88, 89).
70However, the Appeal Panel also emphasized the role of the Society in protecting the public interest (see, for example, s. 4.2 of the Act). In its view, an admission hearing may be warranted in the public interest in certain circumstances, where serious issues about good character arise. This is particularly the case where misconduct has occurred, it is serious and questions fairly arise as to the applicant's good character. For example, the Appeal Panel noted that a hearing may be warranted to assess the credibility of an applicant's explanation for the misconduct and the level of insight into its seriousness and impact (paras. 78, 79).
71The Appeal Panel was of the view that the Hearing Panel failed to adequately consider the role of the Society in protecting the public interest when it found that the admission hearing was unwarranted. The Society has a responsibility, where an [page463] applicant has committed serious misconduct, to "ask whether there are questions that fairly arise as to the applicant's good character that, in the public interest, should be addressed by a Hearing Panel".
72The Appeal Panel characterized the Hearing Panel's failure to take into consideration the public interest role of the Society as an error of law. I would not characterize what the Hearing Panel did as an error in law, but rather an error in principle. There is a compelling rationale for the approach to rule 14.03 adopted by the Appeal Panel. Where there is proven serious misconduct which reasonably raises questions about the good character and integrity of the applicant, it is in the public interest and in conformity with the Society's mandate to protect the public interest to require a hearing, where the applicant has the onus to prove good character.
73The applicant took issue with the decision to hold an admission hearing where the result was "pre-ordained", as she suggested the result was here. Indeed, the Hearing Panel accepted her argument that the hearing was unwarranted because, in its opinion, the material filed in reply to the complaint, including her book, provided a full answer and clearly showed that she was of good character.
74The Appeal Panel took the view that this finding of the Hearing Panel was unreasonable because there were serious questions still in issue about the applicant's judgment and insight, bringing into question her good character after the receipt of her written response. I agree with their conclusion.
75The applicant's misconduct was very grave, and it was not an isolated incident. In the fall of 2002, while enrolled in first-year law school, she destroyed a copy of the neurologist's note contained in the BHC records that the police had requested on behalf of defence counsel in criminal proceedings.
76She had destroyed an earlier copy in 1998 shortly after her daughter's death. In the circumstances of 1998, one can understand the great distress that prompted her to do so. In contrast, when she destroyed the second copy in September 2002, almost four years later, criminal charges had been laid and the police had asked her to obtain the BCH records for purposes of disclosure.
77Not only did she destroy the note, but she misled the police and the Crown about the completeness of the BCH records. She gave a deceptive answer to the Crown after the pre-trial in December 2002 and wrote a deceptive letter to the police on December 31, 2002 indicating that there were no further records, and she sent a copy of that letter to the Crown on January 11, 2003. [page464] Therefore, she engaged in serious wrongdoing that affected the rights of accused persons to disclosure and, ultimately, contributed to the withdrawal of criminal charges.
78The Hearing Panel was very critical of this misconduct, describing it as "a wrong of the most serious kind", which was very prejudicial to the administration of justice. I note, though, that the Hearing Panel spoke only of the suppression of evidence and did not directly refer to the fact she also misled the Crown and police, which further compounded the gravity of the conduct.
79The Hearing Panel stated that the applicant provided an adequate explanation in her response to the Society, so that a hearing was unnecessary. However, her response and the excerpts from her book, when examined carefully, give rise to legitimate questions as to whether she understood the gravity of the misconduct and what her reasons were for coming forward to divulge her destruction of the note.
80In her response of March 16, 2006, she stated that the book "contains a complete accounting of what happened, and is a full answer to these allegations". She went on to say, in the response [Record, p. 136]:
I have already admitted in my book that what happened was an error in judgment, one made by a distraught mother who had lost a young child under tragic circumstances. I eventually came forward and admitted this error, entirely of my own volition. I have taken full responsibility for it. No one was prejudiced by the late disclosure, notwithstanding the complainants' attempts to imply otherwise. They state that their clients would have benefited in making full answer and defence, but they themselves chose to continue with the preliminary hearing rather than seek an adjournment. The fact that charges against their clients were dismissed proves that their right to make full answer and defence was not jeopardized.
81This response, again, refers to the destruction of the note without explaining the apparent course of conduct to conceal its existence. Moreover, it is not clear that she understood the gravity of her conduct, given her reference to the lack of prejudice to the accused, as opposed to her obligation to act with integrity in a matter affecting the administration of justice.
82While she suggests that the book provides a full explanation, it does not provide one that is adequate with respect to her misconduct or her insight into it. In the excerpt quoted earlier in these reasons, she described her mistake in destroying the note in 1998. She did not address the fact that she destroyed a second copy of the note in 2002 and concealed the existence of the document from the police and Crown for several months. Therefore, there was good reason for the Society to have concern about her understanding of the scope of her misconduct and its impact. [page465]
83Moreover, other parts of the book raise questions about her forthrightness and her insight into her wrongdoing. At p. 353, she discussed her husband's testimony at the preliminary inquiry. He was asked whether anyone had spoken of conversion disorder in respect of their daughter. The applicant wrote that that no one had ever discussed conversion disorder or hinted about mental illness. In fact, the neurologist's note that she had destroyed had identified a possible conversion disorder.
84She also described the defence counsel's inquiry about the forensic document examination as a "devious ploy" and a "sleazy stunt". Her description of why she came forward to reveal the destruction of the neurologist's report suggests that it was quite likely she did so in fear of being caught out in cross-examination with respect to the destruction of the note and that she did not have adequate insight into the gravity of what she had done. At p. 355, she wrote:
But for all the security and confidence brought by knowing I was telling the truth and the nurses were liars, I still had one secret gnawing away at me: I had never disclosed the neurologist's note. I had told myself -- over and over again -- that the note made no difference to anybody or anything except Lisa's memory. I had convinced myself that no one would ever ask me about it, but I began to think about how intent [defence counsel] Edwardh was on dissecting everything I had ever said or done and realized this was no longer a safe assumption. It was probable that Edwardh would thoroughly grill me about Boston. I knew I would answer all her questions truthfully when I testified no matter how painful they were, because lying under oath was unthinkable to me.
85Thus, the written response and book leave valid concerns about the applicant's recognition of the gravity of the wrongdoing and the reasons for coming forward to admit her misconduct. Although she admitted she was wrong to destroy the note, she does not reveal the full extent of her acts and, therefore, leaves questions about her insight and credibility.
86The Hearing Panel also looked at other material in the applicant's response before concluding that the hearing was unwarranted. The applicant had submitted six letters of reference in response to the complaint. Four of the letters were written by individuals who had no knowledge of the misconduct.
87She had included letters from the coroner, Dr. Cairns, and her counsel at the coroner's inquest, which had been used in support of her admission to law school. They were written before the events through 2002 and 2003, and therefore did not address the misconduct. As well, she included two letters of reference from law school professors used to assist her in obtaining an articling position. Again, these individuals were [page466] unaware of the facts and their letters of reference did not address the misconduct.
88More significant were the two letters from lawyers at the firm where she articled, who were aware of the allegations of misconduct. Her articling principal did address the issue in her letter. However, even with these letters, the Society could very reasonably be concerned about the applicant's good character in light of the gravity of the misconduct -- destroying potential evidence and concealing the existence of the evidence from the police and the Crown, along with the lack of insight exhibited in the applicant's response to the complaint.
89In sum, the Appeal Panel reasonably concluded that the Hearing Panel made an unreasonable finding when it held that the paper record available to the Society overwhelmingly demonstrated that the applicant was of good character.
90The Hearing Panel also considered the fact that the Society led no evidence at the hearing as further indication that the hearing was unwarranted. However, it was unreasonable to fault the Society's counsel for leading no evidence. As the misconduct was admitted, there was no need to lead evidence about it. Counsel for the Society saw his role as one to test the applicant's evidence to determine whether she showed remorse, and whether she had insight into her misconduct. It is clear from the transcripts that he did so through his thorough cross-examination. For example, at pp. 208-209, in answer to his questions, she admitted she had thwarted the administration of justice and what she had done was wrong. She also admitted it was wrong to mislead the Crown or the police, saying, "in any legal proceeding whatsoever, once you are asked for something, you have an obligation to be honest about what you've been asked". The Hearing Panel failed to consider the contribution of that cross-examination to assist in determining whether the applicant should be admitted.
91Although the Hearing Panel concluded that the hearing was unnecessary, the Appeal Panel noted that the reasons of the Hearing Panel extensively discussed the applicant's evidence, as well as that of character witnesses who testified. At the hearing, the applicant relied upon the material she had filed in response to the complaint. In addition, she testified, called a number of character witnesses and filed additional current letters of reference that squarely addressed the issue of misconduct and character.
92Clearly, the Hearing Panel was assisted by this evidence in reaching its conclusion that although the misconduct was [page467] very serious, the applicant was presently of good character and should be admitted. For example, the Hearing Panel noted that in her evidence, she clearly stated her actions were wrong and demonstrated "again and again in her evidence that she had thorough insight into her wrongdoing" (Reasons on the Merits, at para. 50). They were also impressed with the evidence of her character witnesses (at para. 47).
93Given the record, the Appeal Panel concluded that the Hearing Panel made unreasonable findings of fact in concluding that the admissions hearing was unwarranted in this case because her response had provided a full answer. That decision of the Appeal Panel was a reasonable one, as was its conclusion that an admission hearing was warranted in light of serious misconduct going directly to the administration of justice, the questions about good character left by the applicant's response and the Society's responsibility to govern the legal profession in the public interest. Conclusion
[94]
Conclusion
Therefore, I would dismiss the application for judicial review. If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.
Application dismissed.