Court File and Parties
CITATION: Grant-Kinnear v. Law Society of Upper Canada, 2013 ONSC 1571
DIVISIONAL COURT FILE NO.: 419/12
DATE: 20130313
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, HERMAN AND EDWARDS JJ.
BETWEEN:
JURON GRANT-KINNEAR
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
COUNSEL:
John Richardson, for the Applicant
Brendan Van Niejenhuis and Benjamin Kates, for the Respondent
HEARD at Toronto: March 13, 2013
Oral Reasons for Judgment
MOLLOY J. (orally)
[1] The applicant graduated with a law degree from the University of Kent, England in 2007 and sought to practise law in Ontario. In order to enter the Law Society of Upper Canada’s Lawyer Licensing Process, one must have a law degree from a law school in Canada or a Certificate of Qualification from the National Committee on Accreditation (“NCA”). The NCA would not recognize the Applicant’s law degree because he graduated with Third Class Honours. This assessment was appealed and the NCA Appeal Panel upheld the assessor’s decision. The applicant seeks judicial review of the NCA’s decision and an order setting it aside.
[2] The applicant further seeks the following: (1) a declaration that the accreditation process by the NCA contravenes, in general and in the way it was applied to the applicant, s. 6 of the Fair Access to Regulated Professions Act, 2006, S.O. 2006, c. 31 (“FARPA”); and (2) that the applicant be permitted to enter into the Lawyer Licensing Process in Ontario, or at least, be given the opportunity to write the relevant exams to show his competency.
[3] Pursuant to s. 62 of the Law Society Act, the Law Society has created a “Lawyer Licensing Process” under By-Law No. 4, which sets out a process for obtaining a license to practise law in Ontario. If a candidate does not have a law degree from an accredited law school in Canada, the candidate must have a Certificate of Qualification from the NCA.
[4] The NCA evaluates the legal training and professional experience of persons with foreign or non-common law legal credentials who are looking to be admitted to a common law bar in Canada. Each applicant is assessed individually. After receiving an application, the NCA makes recommendations for any further legal education, if any, required by the applicant to achieve knowledge equivalent to that of a Canadian common law graduate. Once the further educational requirements or specified exams are completed, the NCA issues a Certificate of Qualification.
[5] Section 1.2.2.e of the NCA’s Policies and Guidelines, states that applicants with poor overall academic performance will not receive any recognition for their legal education. Stated as an example, an applicant with Third Class or lower standing in the United Kingdom is considered to have poor overall academic performance.
[6] The applicant graduated with a three year B.A. in political science from the University of Western Ontario in 2003 and subsequently received an LL.B. from the University of Kent, England in 2007. He graduated with Third Class Honours from the University of Kent. This was a two year course of study in which the applicant completed eight courses with an average grade that is the equivalent of 41.6%, with a range of marks between 38 and 49%.
[7] The applicant sent an application to the NCA on June 22, 2010 for the purpose of obtaining a Certificate of Qualification. On August 30, 2010, the assessor wrote back refusing to recognize the applicant’s law degree and stating that the applicant would have to complete a three-year Canadian common law degree to enter the Lawyer Licensing Process.
[8] The applicant appealed the decision to the NCA Appeal Panel on August 30, 2011. The applicant argued that the initial assessment was not “objective” or “fair” and therefore contravened s. 6 of the FARPA. The Appeal Panel’s disposition, dated December 19, 2011, upheld the assessor’s decision not to recognize the applicant’s law degree and further stated that the assessment process was transparent, objective, impartial and fair in accordance with FARPA.
[9] As a preliminary point, it is our view that the Law Society of Upper Canada process involving NCA, as it was applied in this case, is a registration practice within the meaning of s. 6 of FARPA.
[10] I will deal first with the NCA decision with respect to the applicant specifically. This judicial review application is against the Law Society but the Law Society has delegated its responsibility in this regard to the NCA.
[11] Assuming without deciding that there is jurisdiction to review this decision, it must be recognized that the standard of review is reasonableness. This is a highly expert panel operating in a specialized area of expertise. Applying the principles in Dunsmuir v. New Brunswick, clearly the standard of review cannot be correctness, which means it can only be reasonableness.
[12] The decision in this case easily meets that standard. The panel applied reasonable and objective criteria, took into account the individual circumstances of the applicant, and reached a decision that was within the range of reasonable outcomes. The reasons are justified, intelligible and transparent. There is no basis to intervene.
[13] Counsel for the applicant submits that no outcome is reasonable for this applicant unless it gives him the opportunity to write required exams to demonstrate his competence in core areas. Such a policy or a finding by the NCA and/or the Law Society of Upper Canada, might indeed be reasonable, but that does not mean it is the only reasonable outcome. It not the role of the reviewing Court to rewrite the policies or to substitute its own views or those of the applicant, as to what is the best way to assess foreign qualifications. Deference is owed to the tribunal and to the Law Society.
[14] In our view, the decision reached by the NCA and the policy applied are a reasonable outcome.
[15] With respect to the fairness and lawfulness of the accreditation process generally and whether it complies with FARPA, we have reservations as to whether this is properly the subject of judicial review by this Court. This is a highly policy-laden process, closer to an administrative process than a judicial one in the decision-making spectrum. However, we do not consider this case to be an appropriate one to decide that issue. Given the particular facts of this case, and the strong basis for rejecting the applicant’s application, we have no hesitation in finding that the process was overall a fair one, a reasonable one, and one that was in accordance with FARPA and its objectives.
[16] Thus, we see no basis for interfering with the decision that the applicant should not be permitted to enter the Lawyer Licensing Process in Ontario. The application is dismissed.
[17] With respect to costs, we recognize that there are some elements of public interest here and that there is an imbalance between the applicant and the Law Society. That said we don’t see this as a full fledged public interest case. Most of the cases that come to the Divisional Court involve some element of public interest. We do accept the submission of the respondent that they have been successful in the event and some measure of costs is appropriate. However, in light of the circumstances of this applicant, we will fix those costs at $5,000.00.
[18] I have endorsed the Application Record: “Application is dismissed with costs to the respondent, fixed at $5,000.00, for oral reasons given today.”
MOLLOY J.
HERMAN J.
EDWARDS J.
Date of Reasons for Judgment: March 13, 2013
Date of Release: March 18, 2013
CITATION: Grant-Kinnear v. Law Society of Upper Canada, 2013 ONSC 1571
DIVISIONAL COURT FILE NO.: 419/12
DATE: 20130313
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, HERMAN AND EDWARDS JJ.
BETWEEN:
JURON GRANT-KINNEAR
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: March 13, 2013
Date of Release: March 18, 2013