CITATION: McLellan v. Law Society of Upper Canada, 2012 ONSC 2047
DIVISIONAL COURT FILE NO.: 399/11
DATE: 20120329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, JENNINGS AND PEPALL JJ.
BETWEEN:
MYLES FREDERICK MCLELLAN
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
In Person
Lisa Freeman, for the Respondent
HEARD at Toronto: March 29, 2012
jennings j. (orally)
[1] The appellant appeals a decision of the Appeal Panel of the respondent rendered April 29, 2011, dismissing his appeal from the Hearing Panel’s decision of May 12, 2009, revoking the appellant’s license.
[2] The appellant admitted to six particulars of professional misconduct, including misappropriation of his trust fund totaling some $418,000.00.
[3] The appellant fairly conceded both at the hearing and before us that the appropriate penalty for misappropriation is revocation of license, absent exceptional circumstances.
[4] He submitted that exceptional circumstances existed in that:
(a) he had made substantial restitution, and
(b) he suffered from depression which was causally connected to his misconduct and for which he was now being treated.
[5] Before the Hearing Panel where he was represented by experienced counsel, he urged that by reason of those circumstances, the penalty should be suspension, not revocation.
[6] The panel correctly articulated the test in Law Society of Upper Canada v. Reilly. It considered the appellant’s past disciplinary history including other misappropriation. It carefully reviewed the evidence, including medical evidence submitted in mitigation. It concluded that revocation was the only appropriate penalty in the circumstances with which it was confronted.
[7] Before the Appeal Panel, the appellant was permitted to amend his notice of appeal to request a substituted penalty of permission to resign. He submitted that the Hearing Panel erred in failing to consider a penalty not requested of it, that is permission to resign.
[8] The Appeal Panel found that the Hearing Panel was not obligated to address a penalty not sought. It found that the finding of revocation was reasonable. In support of his submission that the Hearing Panel was obliged to consider all alternative penalties, the appellant referred to Sussman Mortgage Funding Inc. v. Ontario [2004], O.J. No. 4551, a decision of the panel of this Court.
[9] In our opinion, Sussman is not helpful in the situation before us. The Court found in Sussman that the Tribunal imposed a penalty of license revocation in the absence of submissions from the license holder. That is not at all what happened in this matter. The finding that revocation was reasonable, made by the Appeal Panel, is a reasonable one.
[10] Before us, the appellant urged that in view of the mitigating circumstances, permission to resign was an appropriate result, and both panels erred in not considering it. He abandoned the relief sought in his notice of motion for appeal for reinstatement and suspension. The standard of review is reasonableness. Imposing a penalty was something at the very core of the panel’s area of expertise and jurisdiction. No authority was shown to us where permission to resign was imposed as a penalty in cases of misappropriation, absent a joint submission as was the case in Davies. Davies was considered in paragraphs 25 and 26 of the Appeal Panel’s decision. We can find in this record no error in principle. The decision of the Hearing Panel to revoke was well within the range of a reasonable result on the facts of this case. The Appeal Panel was correct in upholding that decision.
[11] The appeal must be dismissed.
[12] There was evidence in the appellant’s material that was not before the Hearing Panel, relating to post-revocation rehabilitation efforts undertaken by the appellant. No motion for leave to admit fresh evidence was before us. The Appeal Panel declined to receive that evidence, and in our opinion it was correct to do so. The evidence played no part in our decision. However, it was encouraging to us to learn of the positive steps being undertaken by the appellant and that evidence will undoubtedly be relevant in the future should the appellant attempt to seek readmission.
KENT J.
[13] Costs are awarded to the respondent as sought, fixed in the amount of $2,895.00 all inclusive.
JENNINGS J.
KENT J.
PEPALL J.
Date of Reasons for Judgment: March 29, 2012
Date of Release: April 2, 2012
CITATION: McLellan v. Law Society of Upper Canada, 2012 ONSC 2047
DIVISIONAL COURT FILE NO.: 399/11
DATE: 20120329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, JENNINGS AND PEPALL JJ.
BETWEEN:
MYLES FREDERICK MCLELLAN
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: March 29, 2012
Date of Release: April 2, 2012