CITATION: Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939

DIVISIONAL COURT FILE NO.: 292/14 DATE: 20150817

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. Wilson, Harvison Young, Thorburn JJ.

BETWEEN:

RODERICK JOHN BYRNES

Appellant

– and –

LAW SOCIETY OF UPPER CANADA

Respondent

George Theodor Florea, for the Appellant

Louise Hurteau, for the Respondent

HEARD at Toronto: May 4, 2015

REASONS FOR JUDGMENT

J. Wilson, J.:

[1] Mr. Roderick John Byrnes appeals the May 1, 2014 decision of the Law Society Appeal Panel (“the Appeal Decision”). The Appeal Panel dismissed the Appellant, Mr. Byrnes’ substantive appeal from the February 8, 2013 decision of the Law Society Hearing Panel finding that Mr. Byrnes had engaged in professional misconduct, contrary to Rules 2.01(2) and 2.08(1) of the Rules of Professional Conduct (“the Hearing Panel Decision”). Mr. Byrnes also appeals the decision of the Appeal Panel which upheld the Hearing Panel’s decision dated September 6, 2013 that the appropriate penalty was revocation (“the Penalty Decision”).

[2] The matters before both the Hearing Panel and the Appeal Panel were conducted in French at Mr. Byrnes’ request. Mr. Byrnes retained counsel to represent him before this court. Mr. Byrne’s counsel filed Mr. Byrnes’ factum and made his submissions in English. Counsel for the Law Society made her submissions in French. Therefore, the French translation of this decision is rendered at the same time as the release of the decision in English.

FACTUAL BACKGROUND

[3] Mr. Byrnes was retained on March 6, 2005, in a matrimonial file to act for Mr. Rasheed. Mr. Rasheed is a man of modest means who was earning approximately $42,000 a year at the time and had limited assets. Mr. Byrnes asked Mr. Rasheed to sign an irrevocable direction to hold Mr. Rasheed’s share of the funds from the sale of the matrimonial home in trust for Mr. Byrnes. On August 3, 2005, following the sale of the matrimonial home, Mr. Rasheed received an interim bill of $19,260 inclusive of GST. On August 26, 2005, Mr. Byrnes sent Mr. Rasheed a bill in the amount of $21,654.85 (including GST and disbursements) for services rendered from March 7, 2005 to August 26, 2005, (which included the amount charged for the interim bill). Mr. Rasheed contested the bills, but continued to retain Mr. Byrnes.

[4] On October 31, 2005, a further bill was sent to Mr. Rasheed for additional services rendered from August 27, 2005 to October 31, 2005 in the amount of $11,211.48 (including GST and disbursements).

[5] After receipt of the bill of October 31, 2005, in the amount of $11,211.48, Mr. Rasheed discharged Mr. Byrnes as his counsel and retained new counsel to review his accounts. Mr. Byrnes received virtually all of Mr. Rasheed’s share of the proceeds of the matrimonial home to pay his accounts. These proceeds were the only capital available to Mr. Rasheed.

[6] An assessment hearing occurred in French over a period of several days in February, March and May 2007. Regional Hearings Officer, R.A. Culleton issued his reasons on July 18, 2007, and assessed the accounts at zero, with a requirement that Mr. Byrnes repay all funds received from Mr. Rasheed. Regional Hearings Officer Culleton also made an award of costs in the amount of $48,586.92. In total, Mr. Byrnes was ordered to repay Mr. Rasheed $77,395.17. As Mr. Byrnes had declared personal bankruptcy in April 2007, Mr. Rasheed received nothing.

[7] Mr. Rasheed complained to the Law Society of Upper Canada (“the Law Society”). On April 15, 2011, the Law Society commenced proceedings against Mr. Byrnes pursuant to s. 34(1) of the Law Society Act, R.S.O. 1990, c. L.8, containing the following allegations:

1. Mr. Byrnes failed to serve his client RR, contrary to Rule 2.01(2) of the Rules of Professional Conduct as follows:

a) by failing to follow the instructions of RR in the matter for which he was retained in 2005;

b) by failing to explain to RR the purpose and effect of two irrevocable directions dated April 10, 2005 and May 15, 2005;

c) by failing to keep RR informed of the progress of the matter;

d) by leaving a settlement conference without advising RR of his expected return time;

e) by failing to provide a written estimate of his fees and the reasoning therefore;

f) by charging fees which exceeded the reasonable expectations of RR.

2. Between March 6, 2005 and October 31, 2005, Mr. Byrnes charged his client RR an amount for fees and disbursements which was not fair or reasonable, contrary to Rule 2.08(1) of the Rules of Professional Conduct.

A. Appeal Decision

[8] Mr. Byrnes appealed both decisions of the Hearing Panel to the Appeal Panel. He represented himself at both the Hearing and the Appeal. He argued that the Hearing Panel failed to determine and to provide an estimate, or a range of what would have been a reasonable bill, which was key to the finding of professional misconduct. Mr. Byrnes also contested many of the Hearing Panel’s findings of fact.

[9] The Appeal Panel dismissed Mr. Byrnes’ appeal on May 9, 2014: see Barreau du Haut-Canada c. Byrnes, 2014 ONLSTA 20, [2014] L.S.D.D. No. 109.

[10] The Appeal Panel held that it was not necessary for the Hearing Panel to determine the exact amount of a reasonable bill in order to conclude that a lawyer had charged an amount for fees and disbursements that was not fair and reasonable contrary to Rule 2.08(1) of the Rules of Professional Conduct. The Appeal Panel found that the question of what was a reasonable fee could be determined globally.

[11] The Appeal Panel also found that the Hearing Panel’s imposition of revocation was reasonable in light of Mr. Byrnes’ prior history and lack of remorse and dismissed the appeal as to penalty.

[12] Although Mr. Byrnes made no submissions on the subject of penalty, the Appeal Panel confirmed that the penalty of disbarment accorded by the Hearing Panel was appropriate, given that Mr. Byrnes had two prior convictions and showed no remorse.

B. Hearing Panel Decision on the Allegations of Professional Misconduct

[13] Following a 12-day hearing, the Hearing Panel released its reasons for decision on February 8, 2013: see Law Society of Upper Canada v. Roderick John Byrnes, 2013 ONLSHP 21, [2013] L.S.D.D. No. 20. The Hearing Panel found that Mr. Byrnes had engaged in professional misconduct, contrary to Rule 2.01(2) and Rule 2.08(1) of the Rules of Professional Conduct with respect to allegations 1(b), (c), (e), (f) and 2, as outlined above, but not with respect to allegations 1(a) and 1(d) which were dismissed as not proven.

(i) Proven Allegations

[14] The Hearing Panel found that Mr. Byrnes had failed to explain to his client the purpose and effect of the two irrevocable directions, as he did not ensure that Mr. Rasheed understood that the funds held in trust could be used to honour his accounts.

[15] The Hearing Panel also found that Mr. Byrnes had failed to keep his client informed of the progress of the matter and the quantum of costs that were accruing.

[16] The Hearing Panel further found that Mr. Byrnes had failed to provide a written estimate of his fees. Mr. Byrnes acknowledged this allegation.

[17] Finally, the Hearing Panel concluded that Mr. Byrnes had “churned” the relatively simple matrimonial file and overcharged Mr. Rasheed for the value of the work performed relative to both the reasonable expectations of the client and the value of the work performed.

(ii) Unproven Allegations

Failing to Follow the Client’s Instructions

[18] The Hearing Panel dismissed the allegation that Mr. Byrnes failed to serve his client by failing to follow his client’s instructions contrary to Rule 2.01(2) with respect to three issues:

1. the request in the context of custody that the mother be prohibited to smoke in front of the children;

2. the choice of the real estate agent for the sale of the matrimonial home; and

3. the household goods had little value.

[19] On the issue of smoking in front of the children, the Hearing Panel concluded that it was unable to say on a balance of probabilities that Mr. Byrnes had failed to follow his client’s instructions by actively pursuing the issue of smoking in front the children given that Mr. Rasheed swore two affidavits raising the smoking issue. The Hearing Panel made negative findings of credibility against the client on this issue, at para. 33:

In his testimony before us, Mr. Rasheed resiled from the affidavits saying that to his recollection he never swore any document, but merely signed documents. We were troubled by this evidence having regard to the clear wording on the printed affidavit form itself. Indeed, we observed Mr. Rasheed had much better memory in his testimony in chief than he did in cross-examination. We were particularly troubled by his refusal to accept the narrow fact that he had sworn certain statements (such as those in his affidavit) under oath.

[20] Regarding the issue of the real estate agent, the Hearing Panel found that Mr. Byrnes was acting without instructions from his client with respect to the choice of a real estate agent for the sale of the matrimonial home. However, the Hearing Panel did not make a finding against the lawyer on this fact alone as not much time was spent on this issue, and both counsel on the matrimonial file exhibited some rigidity on this issue.

[21] With respect to the client’s assertion that the household goods had little value and that Mr. Byrnes failed to follow his client’s instructions to pursue a division of the chattels, the Hearing Panel concluded that this allegation had not been proved since Mr. Rasheed conceded that he had concerns about certain items within the household goods.

Leaving a Settlement Conference

[22] The second unproven allegation was that Mr. Byrnes failed to serve his client by leaving a settlement conference without advising his client of his expected return time. The Hearing Panel did not accept Mr. Byrnes’ version of events that he advised his client prior to the settlement conference that he had a conflict in his schedule. Nonetheless, the Hearing Panel did not find that Mr. Byrnes’ decision to leave the settlement conference met the threshold of amounting to professional misconduct and regarded the situation as “one where Mr. Byrnes simply did not adequately consider the time required for his competing engagements” (para. 94).

issues Raised

[23] Mr. Byrnes raised two new issues neither of which was argued or considered by the Appeal Panel. He also challenged the approach and findings of fact of the Hearing Tribunal that were found to be reasonable by the Appeal Panel.

[24] The two new issues raised before this court not argued before the Appeal Panel are:

1. The Hearing Panel reversed the burden of proof by incorrectly placing the onus on Mr. Byrnes to disprove the allegations. The Hearing Panel made findings on several issues that by inference, as there were no documents to corroborate Mr. Byrnes’ version of events due to his failure to keep adequate notes or dockets, his testimony was not to be believed without corroborating documentary evidence.

2. The reasons, although lengthy, are insufficient as they fail to specifically address the credibility of Mr. Byrnes, making it impossible for him to understand why his evidence was not accepted relying on the principles outlined in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1. Mr. Byrnes argues that the Hearing Panel made detailed findings with respect to the credibility of Mr. Rasheed, such as what it believed and why, and what it did not accept. Much of the evidence of Mr. Rasheed was not accepted. The Hearing Panel did not make equivalent findings of credibility when considering the evidence of Mr. Byrnes. Mr. Byrnes argues that this absence of an adequate credibility analysis raises the issue of the sufficiency of the reasons of the Hearing Panel.

[25] The issues raised by the Appellant, Mr. Byrnes include the following:

a) Did the Hearing Panel err in law by shifting the onus of proof onto Mr. Byrnes?

b) Did the Hearing Panel err by failing to address the issue of credibility of Mr. Byrnes? Did the reasons of the Hearing Panel meet the test of sufficiency allowing meaningful appellate review considering the principles confirmed in Neinstein?

c) Did the Hearing Panel err in law by failing to make a material finding of fact, i.e. to determine an estimate, or a range thereof, for the quantum of a reasonable bill, and therefore the quantum of any impugned overcharge, if any?

d) Did the Hearing Panel err in law in concluding that Mr. Byrnes should not have pursued the issue of Mr. Rasheed’s wife smoking around the children because there was no case law in Canada on this point?

e) Did the Hearing Panel ignore documentary evidence that corroborated the Mr. Byrnes’ testimony?

f) Did the Hearing Panel misapprehend material evidence?

g) Did the Hearing Panel err in law when it decided that Mr. Byrnes breached the Rules of Professional Conduct by not providing Mr. Rasheed with a written estimate for fees?

[26] By way of response, the Law Society raises two major issues:

1. The issue of the sufficiency of reasons and the shifting of the onus of proof raised by Mr. Byrnes before this court were not argued before the Appeal Panel. The Law Society argues that Mr. Byrnes is not permitted to raise these new issues as they were not argued before the Appeal Panel.

2. With respect to the various grounds of appeal as to factual matters, the Law Society argues that Mr. Byrnes is treating this appeal as an appeal de novo of the Hearing Panel Decision, reviewing in detail the findings of fact and challenging the reasonableness of these findings, rather than focusing on the reasonableness of the findings and conclusions reached by the Appeal Panel in the Appeal Decision. This is an appeal from the decision of the Appeal Panel, not the Hearing Panel.

[27] In any event, the Law Society argues that there is no merit to the new matters raised on appeal. All of the findings of fact of the Hearing Panel are reasonable and supported by the evidence. The Law Society argues that the Hearing Panel did not reverse the burden of proof.

[28] On all of the other issues raised, the Law Society argues that the questions were fully argued before the Appeal Panel and that the Appeal Panel determined that the approach, the factual findings and the reasons of the Hearing Panel were reasonable. The Appeal Panel decision is reasonable, and this court ought not to intervene on any of the many factual issues raised.

STANDARD OF REVIEW

[29] The standard of review applicable to decisions from the Law Society Appeal Panel was canvassed by the Divisional Court in Igbinosun v. Law Society of Upper Canada (2008), 2008 36158 (ON SCDC), 239 O.A.C. 178 (Div. Ct), aff’d 2009 ONCA 484, 96 O.R. (3d) 138. Molloy J., writing for the majority, set out the standard at para. 9:

As this Court has recently held in Law Society of Upper Canada v. Evans (2008), No. 34276 (Ont. Div. Ct.), the decision in Dunsmuir does not have any effect on the well-established standard 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, determination of penalty and 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. Similarly, the Appeal Panel is required to accord deference to decisions of the Hearing Panel on questions of fact and questions of mixed fact and law. The Appeal Panel is only entitled to intervene if the decision of the Hearing Panel is unreasonable or incorrect in law. The standard of review to be applied by the Appeal Panel in its consideration of the Hearing Panel decision is a question of law and is required to be correct: The Law Society of Upper Canada v. Neinstein at paras. 43-44.

See also Shore v. Law Society of Upper Canada (2009), 2009 18300 (ON SCDC), 96 O.R. (3d) 450 (Div. Ct.), at paras. 59-61; and Law Society of Upper Canada v. Evans (2008), 2008 34276 (ON SCDC), 91 O.R. (3d) 163 (Div. Ct.), at para. 13.

[30] On pure questions of law that do not involve the discretion or expertise of the Appeal Panel, such as the application of the onus of proof, the standard of review is that of correctness: see College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599, [2013] O.J. No. 2057 (Div. Ct.), at para. 11; Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 (C.A.), leave to appeal to S.C.C. dismissed [2005] S.C.C.A. No. 428, at para. 70; Pimparé v. Canada (Attorney General), 2012 FC 581, [2012] F.C.J. No. 589 at para. 24; Nova Scotia Teachers Union v. Nova Scotia Community College, 2006 NSCA 22, 265 D.L.R. (4th) 288, at para. 31; and Miners' Memorial Manor v. International Union of Operating Engineers, Local 968B, 2010 NSSC 464, 300 N.S.R. (2d) 78, at para. 37.

[31] With respect to the sufficiency of the reasons as a whole, the reasons must be read together with the outcome and reviewed on the reasonableness standard: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 22; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 14; Beitel, at para. 11; Singer v. Canada (Attorney General), 2010 FC 607, 370 F.T.R. 121, aff’d 2011 FCA 178, 423 N.R. 212, at para. 18; Vukic v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 370, 407 F.T.R. 97, at para. 20; and Canada (Minister of Citizenship and Immigration) v. Hammoudeh, 2015 FC 298, [2015] F.C.J. No. 267, at para. 28.

[32] All issues raised in this case engage the standard of reasonableness, with the exception of the legal question as to whether the Hearing Panel reversed the onus of proof, which engages the standard of correctness.

CAN THE APPELLANT RAISE THE NEW ISSUES ON APPEAL?

[33] I will first consider the legal question of whether the Appellant, Mr. Byrnes, is entitled to raise new issues on appeal before this court, followed by a review of the other arguments raised.

[34] Courts are typically reluctant to allow a party to raise new issues on appeal for a number of reasons. First, there is not a sufficient evidentiary record upon which to make the findings of fact necessary to rule on the new issue. Second, the lack of opportunity to respond and adduce evidence at the first hearing prejudices the other side. Third, it deprives the appellate judges of the benefit of a lower court’s determination of the issue: see Keatley Surveying Ltd. v. Teranet Inc., 2014 ONSC 1677, 119 O.R. (3d) 497 (Div. Ct.), aff’d 2015 ONCA 248, [2015] O.J. No. 1828, at para. 32; Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Flora v. Ontario (Health Insurance Plan, General Manager) (2005), 2005 47693 (ON SCDC), 207 O.A.C. 330 (Div. Ct.), at para. 26; McNaught v. Toronto Transit Commission (2005), 2005 1485 (ON CA), 74 O.R. (3d) 278 (C.A.), at para. 57; and Wasauksing First Nation v. Wasausink Lands Inc. (2004), 2004 15484 (ON CA), 184 O.A.C. 84 (C.A.), leave to appeal to SCC dismissed [2004] S.C.C.A. No. 200, at para. 102.

[35] However, an appellate court may entertain new issues on appeal if the following three conditions are met:

1. there is a sufficient evidentiary record to resolve the issue;

3. the failure to raise the issue at the hearing was not due to a tactical decision; and

4. the refusal to raise the new issue on appeal would not result in a miscarriage of justice.

See Black v. Owen, 2012 ONSC 400, 291 O.A.C. 8 (Div. Ct.), at para. 35; Flora, at para. 27; and R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, at para. 20, per L'Heureux-Dubé J., dissenting.

[36] I will now apply these three conditions to the facts of this case to determine whether Mr. Byrnes may raise the issues of the burden of proof and the sufficiency of reasons in this appeal.

Reversal of the Burden of Proof

[37] In the case of the reversal of the burden of proof, I am satisfied that the three conditions for allowing a new issue to be raised on appeal for the first time have been met. First, I find there is a sufficient evidentiary record to resolve the issue as to whether the Hearing Panel reversed the burden of proof by incorrectly placing the onus on Mr. Byrnes to disprove the allegations of misconduct because it raises a pure question of law. No evidence would be called on this issue. Second, I find the failure to raise this issue before the Appeal Panel was not due to a tactical decision. Mr. Byrnes was self-represented at the hearing and did not retain counsel until the appeal before this court which explains why this issue was not previously raised. Third, to refuse Mr. Byrnes the opportunity to raise this new issue could result in a miscarriage of justice if he is correct that the onus of proof was shifted to the lawyer to disprove the allegations, rather than the onus resting upon the Law Society to prove the case against him.

(i) Sufficiency of Reasons

[38] Mr. Byrnes argues that the reasons of the Hearing Panel are insufficient as findings of credibility were not made against the lawyer. He relies on the Court of Appeal’s decision in Neinstein to argue that the Hearing Panel had an obligation to consider all of the evidence and to make credibility assessments in the context of the totality of the evidence to allow him to understand the reasons why findings were made against him, and to allow for appellate review.

[39] In Newfoundland Nurses, the Supreme Court of Canada held that the adequacy of reasons is not a stand-alone basis for quashing a decision and that “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (para. 14).

[40] I am of the view that the three part test for considering a new issue on appeal is met with respect to the sufficiency of the reasons, but that the correct law to apply to consider the sufficiency of the reasons is Newfoundland Nurses, which impacts upon the reasons in Neinstein as outlined above.

[41] There can be no prejudice to the Law Society as the question raised is purely a legal one and no further evidence would have been filed. Mr. Byrnes is represented for the first time by counsel before this court. While representing himself, he raised specific issues before the Appeal Panel and questioned the sufficiency of the reasons on specific issues, but did not raise the question globally.

[42] If the reasons of the Hearing Panel do not meet the test of the sufficiency of reasons for administrative tribunals as outlined in Newfoundland Nurses, then the failure to consider the issue may result in a miscarriage of justice.

[43] I note that counsel for the Law Society did not with vigour advance that the issue of sufficiency of reasons should not be heard, but rather argued that the test in Newfoundland Nurses with respect to the sufficiency of reasons was amply met.

[44] Having determined that Mr. Byrnes has met the three conditions for raising new issues on appeal, I will now consider the merit of these arguments.

ANALYSIS

[45] The Hearing Panel correctly outlined the burden of proof required to prove misconduct or conduct unbecoming at para. 66 of the Hearing Panel Decision:

The burden of proof on the Society to prove misconduct or conduct unbecoming is on the balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41. In applying this standard, we remind ourselves of what the Supreme Court of Canada said in McDougall, supra, at paragraph 46:

Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

[46] The issue to be determined is whether the Hearing Panel, and implicitly the Appeal Panel, shifted the burden of proof from the Law Society to Mr. Byrnes by coming to the conclusion that the allegations against him were proven as he did not have documentary evidence to support his position, without making any specific findings of credibility against Mr. Byrnes on the matters in issue.

[47] Before reviewing the Hearing Panel’s reasons and considering whether or not they were sufficient, it is necessary to understand the impact of Newfoundland Nurses on the Neinstein decision.

The Test for the Sufficiency of Reasons Articulated in Newfoundland Nurses

[48] In Newfoundland Nurses, the Supreme Court confirmed that the adequacy of reasons is no longer a stand-alone basis for judicial review of an expert tribunal (para. 14). This effectively reversed the Court of Appeal’s conclusion in Neinstein, at para. 94, that the failure to provide adequate reasons on findings of credibility may be a stand-alone ground of appeal.

[49] I return to first principles. In order for a reviewing court to determine whether or not a decision is reasonable, it must examine the reasons given by the administrative tribunal. In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55, Iacobucci J., on behalf of the Supreme Court, defined an “unreasonable decision” as follows:

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79). [Emphasis added.]

[50] The Supreme Court in Newfoundland Nurses reaffirmed the principle enunciated in Dunsmuir that a court reviewing the reasons of an administrative tribunal must determine whether the reasons demonstrate “justification, transparency and intelligibility” (para. 47). Writing for the court, Abella J. made the following remarks, at paras. 15 and 16:

In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [Emphasis added.]

[51] I note that Newfoundland Nurses did not specifically consider the Neinstein decision.

[52] Recently, in Merchant v. Law Society of Saskatchewan, 2014 SKCA 56, 438 Sask. R. 110, the Saskatchewan Court of Appeal addressed the relationship between the decisions in Newfoundland Nurses and Neinstein when considering the question of whether a decision of a Law Society was unreasonable because it failed to provide sufficient reasons to support a finding of conduct unbecoming a solicitor. The Court of Appeal held that the governing law respecting this issue was set forth in Newfoundland Nurses and Neinstein was inapplicable to the facts of that case as there was no need to make any credibility findings respecting contradictory evidence (paras. 43 and 48-49).

[53] In Barrington v. Institute of Chartered Accountants of Ontario, 2011 ONCA 409, 279 O.A.C. 148, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 367, Karakatsanis J.A. (as she then was), writing on behalf of the Ontario Court of Appeal, confirmed aspects of the Neinstein decision and stated, at para. 113, that:

The reasons for decision in professional discipline cases must address the major points in issue in the case. A failure to deal with material evidence or a failure to provide an adequate explanation for rejecting material evidence precludes effective appellate review: Gray v. Ontario 2002 7805 (ON CA), (2002), 59 O.R. (3d) 364 (C.A.), at paras. 22-24; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at paras. 61 and 92.

[54] Further Karakatsanis, J.A. confirms, at paras. 55 and 125:

[55] Read as a whole, and in the context of an expert tribunal reviewing technical standards, the reasons provide the basis for its decision and are sufficient for appellate review.

[125] While the Divisional Court referred to these reasons as “conclusory”, the conclusion did not require further elaboration. As experts, the DC understood the implication of failing to comply with GAAP and GAAS in these circumstances. Reading the reasons in their entirety reveals that the panel members turned their minds to the proper test, set out the issues and key evidence relied upon, applied their expertise and articulated their conclusions.

[55] I note that Barrington was decided by the Ontario Court of Appeal in May 2011, leave to appeal to the Supreme Court of Canada was refused on December 8, 2011, and Newfoundland Nurses was argued on October 14, 2011, and was released by the Supreme Court of Canada on December 15, 2011.

[56] The reasons in Neinstein and Barrington make it clear that the reasons for decision in professional discipline cases must address the major points in issue to enable appellate review. A failure to deal with material evidence or a failure to provide an adequate explanation for rejecting material evidence precludes effective appellate review. Applying the reasoning in Newfoundland Nurses, if the reasons of the Hearing Panel do not explicitly make findings of credibility against Mr. Byrnes on the issues of professional misconduct, that does not end the inquiry. There is then a second step.

[57] A recent Ontario Court of Appeal decision confirms the principles in Newfoundland Nurses that where the express reasons fall short, a reviewing court is obliged to discern the tribunal’s implicit reasons, having regard to the context and the evidentiary record: see EllisDon Corp. v. Ontario Sheet Metal Worker’s and Roofers’ Conference, 2014 ONCA 801, 123 O.R. (3d) 253, at para. 46.

[58] In one of its more recent comments on the sufficiency of reasons, the Supreme Court emphasized that “administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons”: see Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3.

[59] As confirmed in Ontario Sheet Metal Workers, it is not appropriate for this court to take an overly formalistic view of the decision being reviewed. It is the obligation of this court to “discern the tribunal’s implicit reasons, having regard to the context and the evidentiary record, where the express reasons fall short” (para. 46).

[60] The question that must be determined with respect to the sufficiency of the reasons is whether the reasons in the Hearing Panel Decision fall within the broad ambit of the test outlined in Newfoundland Nurses. In other words, do the reasons allow a reviewing court “to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”?

Review of the Hearing Panel’s Reasons on Each Finding of Misconduct

[61] I will now review the Hearing Panel’s reasons with respect to the findings of professional misconduct to determine whether the burden of proof was misapplied, and whether the test for the sufficiency of reasons outlined in Newfoundland Nurses has been met.

(i) The Irrevocable Directions

[62] The Hearing Panel’s reasons regarding the finding that Mr. Byrnes failed to advise Mr. Rasheed of the purpose and effect of the two irrevocable directions dated April 10, 2005 and May 15, 2005, are found at paras. 79 to 85.

[63] When asked about the circumstances around when he signed the Irrevocable Direction on April 10, 2005, Mr. Rasheed testified: “This was signed with a whole bunch of pile of papers that was sitting on Mr. Byrnes’ desk and I was told to read and sign.” (Transcript, vol. 1, p. 77). Mr. Rasheed was not cross-examined on this point.

[64] The record discloses that Mr. Byrnes testified that he only explained the meaning of the word “irrevocable,” that the purpose of the direction was to secure his accounts and that the amount would be held in trust. Mr. Byrnes did not testify that he explained the amount could be used to honour his account (Transcript, vol. 6, p. 77).

[65] It is clear from the evidence that by signing these documents, Mr. Rasheed did not understand he would receive very little if anything out of the matrimonial settlement: see paras. 19 to 21 of the Hearing Panel Decision.

Conclusion as to The Irrevocable Directions

[66] I do not accept that the Hearing Panel shifted the onus to the lawyer to disprove the allegations of professional misconduct. A lawyer has an obligation to explain the meaning and implications of documents signed and ensure the client understands.

[67] The comment by the Hearing Panel that there were no documents to support the evidence of the lawyer does not reverse the onus of proof, but is a relevant fact in deciding whether the lawyer met his obligation of properly explaining the meaning and effect of the directions, and whether the client understood what he was signing.

[68] The finding that the client did not understand the implications of signing the irrevocable directions was confirmed by the client’s evidence, by the fact that the client was not cross-examined on what happened at the meeting of April 10, 2005, when the first document was signed, and by the reaction of the client and his sister when the accounts were received. The Hearing Panel also accepted the accuracy of the note prepared by the client’s sister on September 3, 2005, as to what was discussed during the telephone conference held on August 7, 2005. By Mr. Byrnes’ own evidence, the explanation was inadequate and the Hearing Panel reached the reasonable conclusion based upon all of the evidence that the client had no understanding of the ramifications of what he was being asked to sign.

[69] The reasons of the Hearing Panel, which were adopted by the Appeal Panel, are sufficient. There was no need for findings of credibility with respect to Mr. Byrnes on this issue, as the obligation was upon him to ensure that his client understood what he was signing. The reasons supplemented by the record amply confirm that the client did not understand the nature and implications of the documents that he was asked to sign and that the lawyer failed to explain the purpose and effect of the two irrevocable directions. This conclusion is reasonable and supported by the evidence.

(ii) Failing to Keep the Client Informed of the Progress of the Matter

[70] The Hearing Panel’s reasons for finding that Mr. Byrnes failed to keep his client informed of the progress of the matter are found at paras. 86 to 90 of the Hearing Panel Decision.

[71] The Hearing Panel concluded that the Law Society had not proved that Mr. Byrnes failed to follow his client’s instructions on the issue of the division of the household contents, and on the issue of not smoking in front of the children. However, the Hearing Panel did find that as of August 7, 2005, Mr. Rasheed and his sister were unaware of where matters stood on that date.

[72] Mr. Byrnes testified that his client was frequently at the office, that no correspondence or pleading was completed without his approval and that the client was very aware of what was going on, but that the status of these matters was not confirmed in writing.

[73] Mr. Byrnes did not send any interim bills to his client. Mr. Byrnes confirmed that he warned his client that he could not afford to have him pursuing the question of chattels at $400.00 per hour. Accepting Mr. Byrnes’ evidence on this point does not end the inquiry.

[74] The core criticism of Mr. Byrnes’ conduct is spending excessive amounts of time on matters that the client had no ability to pay for without adequate advice, information and direction from Mr. Byrnes.

[75] There is no evidence that there were any discussions warning the client as to the mounting costs and that, notwithstanding the client’s desire to pursue the issue of division of chattels and the question of smoking in front of the children, that he risked losing his sole asset if he chose to pursue this unwise course. The Hearing Panel confirmed that there were “shards of information” in the scanty notes as to what was conveyed to the client.

[76] The Hearing Panel concluded that Mr. Byrnes went off on a frolic on his own on the chattels issue, without the client understanding the costs associated with what he was doing. This is illustrated at paras. 23 to 25 of the Hearing Panel Decision:

[23] Mr. Byrnes took a more expansive view of the dispute. He asked Mr. Rasheed to prepare a list of the household goods. This initial list contained 48 articles including a limited number, which Mr. Rasheed had indicated that he wanted to keep. The list of items ultimately grew to 110, and was then amended to contain 111 items. We reviewed a long series of letters exchanged between Mr. Byrnes and Ms. Yates on the subject of the household goods. Mr. Byrnes had also made five separate handwritten notes to his file containing different lists of contents. He wanted to follow a system for division where two lists of household goods were prepared and the spouses would choose one list or the other. For her part, Ms. Yates wanted to spend as little time as possible on the question. As she testified,

I always tell my clients that I didn't go to law school to figure out to divide their pots and pans, and I don't do contents ... it is irritating and it is not a good use of my hourly rate, and it's not good use of my time and sanity.

[24] On June 21, 2005 Ms. Yates wrote to Mr. Byrnes and simply asked that he advise her of the household goods which Mr. Rasheed wanted to select from a list that Ms. Persaud had sent on June 8, 2005. Mr. Byrnes did not conclude this issue by proceeding in that way. Ms. Yates then brought a motion seeking resolution of a number of items, including not only distribution of the proceeds of the matrimonial home, but also division of household property. Ms. Persaud swore that she thought that the contents were worth perhaps $10,000. Mr. Byrnes, on behalf of Mr. Rasheed, believed the value to be closer to $85,000. The Lawyer responded by filing material which sought to have the Court enforce a process whereby Ms. Persaud chose one or another list.

[25] Mr. Byrnes testified that he spent perhaps 30 hours dealing with the question of household contents. Mr. Rasheed testified that he had not discussed this matter with his counsel. We do not accept that evidence. Having said that, Mr. Rasheed cannot have been aware of how much time and money was being spent on the issue, because Mr. Byrnes did not provide him with an interim account until much later.

[77] A similar conclusion is reached with respect to the smoking issue: see para. 35 of Hearing Panel Decision.

[78] The evidence is clear that, as of August 2005, although the client may have been loosely aware that steps were being taken on these two issues, he had no idea that the costs were mounting out of control, and that he was going to be left with nothing or next to nothing at the end of the lawsuit from the proceeds of the matrimonial home.

Conclusion on Failing to Keep the Client Informed of the Progress of the Matter

[79] A close review of the reasons of the Hearing Panel confirms that it did not reverse the onus of proof. The fact that there were no documents to support the evidence of Mr. Byrnes did not reverse the onus of proof, but was a relevant fact for the Hearing Panel to take into account.

[80] Contrary to Mr. Byrnes’ assertions, there was no deficiency in the reasons. The Hearing Panel considered the evidence before it and drew reasonable inferences and findings of fact from that evidence, and it was reasonable for the Appeal Panel to uphold these determinations.

(iii) Failing to Provide a Written Estimate of Fees

[81] This allegation is acknowledged by Mr. Byrnes.

(iv) Overcharging

[82] The Hearing Panel concluded that the initial work performed by Mr. Byrnes, which consisted of obtaining an interim order for access and resolving interim support, was entirely reasonable and in the client’s interests.

[83] However, after the successful beginning for Mr. Rasheed, the Law Society alleged that Mr. Byrnes spent an inordinate amount of time and effort on the issues of the division of the household goods and whether or not Mr. Rasheed’s spouse, Ms. Persaud, would be permitted to smoke in front of the children, without the client understanding the financial implications of pursuing these issues.

[84] The Hearing Panel concluded that Mr. Byrnes had “churned” the relatively simple matrimonial file and overcharged Mr. Rasheed for the value of the work performed relative to both the reasonable expectations of the client and to the value of the work performed: see paras. 96 to 105 of the Hearing Panel Decision. The Hearing Panel focused its analysis on the global amount of the bill and made the following findings:

• it was unfair or unreasonable for Mr. Byrnes to devote 30 hours to the separation of the household goods issue;

• it was unjustifiable for Mr. Byrnes to spend more than several hours on the smoking issue and he should have advised his client not to pursue it given the absence of jurisprudence on the subject; and

• it was wholly unjustifiable for Mr. Byrnes to increase the amount of his account once Mr. Rasheed had chosen to assess his accounts.

[85] The evidence fully supports the finding of the Hearing Panel, as confirmed by the Appeal Panel, that the fees charged were excessive and exceeded the reasonable expectation of the client.

[86] Mr. Rasheed provided a retainer in the amount of $2,000 when he retained Mr. Byrnes in March 2005. During the initial discussion held in March 2005 as to the range of fees, Mr. Byrnes estimated that it would cost between $5,000 and $8,000, for the divorce if the matter could be resolved without a trial. No interim bills were sent.

[87] When Mr. Byrnes received his client’s share from the sale of the matrimonial home, he sent Mr. Rasheed an interim bill for $19,260 on August 3, 2005, with no detail. Mr. Byrnes immediately transferred the funds from his trust account to pay the interim account.

[88] Mr. Rasheed and his sister (who had been at the initial meeting when Mr. Byrnes was retained) reacted in shock and outrage.

[89] Mr. Byrnes testified that the client agreed to pay a block fee of $20,000, which the client denied. The Hearing Panel did not accept this evidence and confirmed that the client was in serious financial difficulty and required his share of the proceeds of the home to reestablish himself. The Hearing Panel stated at para. 43:

These needs were real needs. While we do not regard the figure of $8,000 to have been carved in stone as an absolute maximum, it is inconceivable that in the circumstances which the client describes he would nevertheless have agreed to pay a block fee of $20,000.

[90] The client’s sister asked for details of the work performed with dockets.

[91] The matrimonial settlement was finalized on October 25, 2005, at a case conference.

[92] The client continued to retain Mr. Byrnes after the dispute about the fees until he was discharged on October 31, 2005. The client then retained new counsel on November 1, 2005, and asked him to review the file and dockets. At this juncture, it emerged that Mr. Byrnes did not keep dockets, but rather had his assistant do a reconstruction of a break down of his time spent after the fact. There were significant delays in obtaining this reconstruction.

[93] The reconstruction covered the period of March 6, 2005 to August 26, 2005. The Lawyer justified his account of $24,805 (exclusive of disbursements) during this period by reference to this reconstruction.

[59] Mr. Byrnes chose to issue his reconstructed fee detail in French. He explained that he prefers to participate in litigation in which he personally has an interest in French, and he regarded the fee detail as a step in the litigation. We find his decision to take this step as a regrettable tactical decision.

Conclusion on Overcharging

[94] A review of the reasons confirms that the Hearing Panel did not reverse the onus of proof. The Hearing Panel noted that the documentary evidence did not support Mr. Byrnes’ position. The absence of documents was appropriately considered by the Hearing Panel as one relevant fact in assessing Mr. Byrnes’ evidence.

[95] The Hearing Panel considered all of the evidence before it in detail, and concluded that Mr. Byrnes had spent excessive time on the division of household goods and the issue of smoking in front of the children, without adequate explanation to the client. The reasons supporting this conclusion are reasonable and supported by the evidence. These two factors caused the accounts to escalate beyond what was reasonable within the reasonable expectation of the client.

[96] I conclude that the reasons of the Hearing Panel amply meet the test as to the sufficiency of reasons stipulated by the Supreme Court in Newfoundland Nurses. This is not a case of pure credibility, as was the case in Neinstein. Many of the relevant facts are not in dispute. Where the evidence was disputed, the Hearing Panel reached its conclusions reasonably, considering the evidence and context as a whole.

[97] For these reasons, the new grounds of appeal raised before this court concerning the burden of proof and the sufficiency of reasons are dismissed.

OTHER ISSUES RAISED BEFORE THIS COURT

[98] During submissions, counsel for Mr. Byrnes challenged certain other factual issues unrelated to the burden of proof and the sufficiency of the reasons. The factum challenged many of the Hearing Panel’s specific findings of fact.

[99] As I have concluded that the reasons were sufficient on the three contested findings of professional misconduct, I will not respond to individual factual issues challenged as this is not a rehearing of the appeal from the Hearing Panel Decision.

[100] There is no merit to Mr. Byrnes’ arguments that the Hearing Panel ignored documentary evidence, nor is there any merit to the various arguments that the Hearing Panel misapprehended any of the material evidence.

[101] I agree with counsel for the Law Society that these arguments regarding factual issues are a rehashing of the unsuccessful arguments made before the Appeal Panel. This is not an appeal de novo, but an appeal from the decision of the Appeal Panel. The conclusions of the Appeal Panel confirming the findings of the Hearing Panel are reasonable and supported by the evidence.

[102] All grounds challenging findings of fact made by the Hearing Panel or the Appeal Panel are therefore dismissed.

Was it Reasonable to Consider the Lawyer’s Accounts Globally?

[103] The only significant issue that was raised, other than an attack on factual findings, is whether it was reasonable for the Appeal Panel to conclude that the accounts could be assessed globally without the benefit of expert evidence.

[104] The Appeal Panel confirmed that it was reasonable for the Hearing Panel to determine globally whether the amount for fees charged was reasonable in the circumstances, without an expert testifying as to what an appropriate amount for fees should have been in the circumstances.

[105] Mr. Byrnes argued before the Appeal Panel and this court that, in order to make a determination that a fee was excessive for the purpose of a hearing as to professional misconduct, or exceeded the reasonable expectations of the client, there must be evidence before the Hearing Panel as to the appropriate fee range.

[106] I disagree with this argument as the case law confirms that the conclusions of the Appeal Panel on this point were reasonable.

[107] In Lawyers & Ethics: Professional Responsibility and Discipline, loose-leaf (Toronto: Carswell, 1993), Gavin MacKenzie explains the use of a Hearing Panel’s expertise in discipline proceedings, at § 26.14:

Because the audi alteram partem rule applies to discipline proceedings, the decisions of hearing panels must be based upon the evidence introduced at hearings, including any facts agreed upon by the parties. Hearing panels may take notice of any generally recognized scientific or technical facts within their specialized knowledge, in addition to taking notice of any facts that may be judicially noticed. Indeed, the specialized knowledge of members of professional regulatory bodies is one of the most important justifications for self-governance.

Members of discipline tribunals may thus use their expertise in making findings of fact. However, they must have an evidentiary basis for those findings. They cannot decide disputed issues purely on the basis of their own beliefs, though they may act upon evidence by supplementing it with their own expertise, particularly when dealing with issues of prevailing professional standards. As former Associate Chief Justice MacKinnon of the Ontario Court of Appeal said in a 1983 decision, members of discipline tribunals may use their own expertise in assessing evidence before them, but the evidence must be before them before they can assess it. The expertise used by members of tribunals must not be at variance with the evidence. [Footnotes omitted.]

[108] Mr. Byrnes relies on the decision in Law Society of Upper Canada v. Miller, 2007 ONLSHP 41, [2007] L.S.D.D. No. 26, at para. 97 in support of the argument that external expert evidence is necessary to establish what was an appropriate fee. In that case, the Hearing Panel found that the lawyer’s billings were unfair and unreasonable. The Panel heard evidence from two lawyers regarding what they thought a lawyer should have charged for the work performed in those circumstances (one said $135,000 and the other said $235,000), but the Panel did not specify which amount it thought was fair or reasonable.

[109] Miller can be distinguished from this case. Overcharging was the only issue in Miller. The evidence of the two lawyers was helpful in assessing the question of overcharging, and perhaps in that case the evidence was required to assist the panel in reaching the conclusion that the client had been overcharged by 4 to 5 times the value of the work performed. There is no statement in Miller confirming that expert evidence is required to assess whether a client has been overcharged.

[110] I note that there are two other recent cases where a finding of overcharging is made without expert evidence.

[111] In Law Society of Upper Canada v. Silver, 2014 ONLSTH 186, [2014] L.S.D.D. No. 252, at para. 18, the Hearing Panel found that the fee of $8,285.23 levied by Mr. Silver in his bill was grossly excessive for the similarly straightforward tasks he performed. The Panel did not rely on any expert evidence to make this finding, nor did it specify what a reasonable fee would have been in the circumstances.

[112] Similarly, in Law Society of Upper Canada v. Bharadwaj, 2011 ONLSHP 4, [2011] L.S.D.D. No. 1, at para. 37, the Hearing Panel found that the lawyer breached Rule 2.08(1) of the Rules of Professional Conduct by charging the unfair and unreasonable fee of $15,500 for what ended up being a guilty plea before trial. The only substantive work that was done on the file was a Charter motion and some discussions with a judge in chambers. The Panel did not rely on any expert evidence to make this finding, nor did it specify what a reasonable fee would have been in the circumstances.

[113] I find that there is no rule or practice that to assess fees under Rule 2.08(1) of the Rules of Professional Conduct there needs to be expert evidence called as to the appropriate fee. Such evidence may be helpful, but is not a mandatory prerequisite as suggested by Mr. Byrnes.

[114] A finding that a lawyer breached Rule 2.08(1) of the Rules of Professional Conduct for charging an unfair and unreasonable amount for fees falls within the Hearing Panel and the Appeal Panel’s expertise. Panel members may use their own expertise in assessing the reasonableness of an account, so long as evidence is before them on this issue. The question is not simply what would have been a fair and reasonable amount for fees, but rather whether the overcharge amounts to professional misconduct.

[115] In this case, the global approach to this question was in fact favourable to Mr. Byrnes.

[116] The Hearing Panel declined to follow the suggestion of counsel for the Law Society to be bound by the finding of the assessment officer to determine what was a fair fee.

[117] After a prolonged assessment, the officer concluded that the value of the work performed by Mr. Byrnes was zero. This was a fact that the Hearing Panel could take into consideration, but was not determinative of the issue.

[118] Instead, the Hearing Panel applied the principle articulated by Hoilett J. in Ellyn-Barristers v. Stone, [2006] O.T.C. 314 (S.C.), at para. 34, that: “[t]he overarching question in any assessment of a solicitor’s account must be whether or not the total amount charged the client fairly represents the professional services rendered.”

[119] The focus of the Hearing Panel was on the global amount of the bill, without reviewing each of the factors mentioned in Rule 2.08(1).

[120] The Hearing Panel summarized all of the accounts sent by Mr. Byrnes to Mr. Rasheed, at para. 50 of its reasons:

On October 31, 2005, Mr. Byrnes issued a bill for a total of $11,211.48 including GST and disbursements for services rendered between August 27, 2005 and October 31, 2005. On February 22, 2007, after the matter had proceeded to an assessment of accounts, Mr. Byrnes billed Mr. Rasheed for a further $26,608.24. Accordingly, to the end of October 2005, Mr. Byrnes had issued bills exclusive of GST in the amount of $30,171.00. Two years later, once the assessment proceedings had begun, Mr. Byrnes issued another bill (exclusive of GST) of $35,687.97. No account had been issued at all prior to August 3, 2005.

Conclusions as to Whether it was Reasonable to Consider the Lawyer’s Accounts Globally

[121] The Hearing Panel concluded that it was not reasonable to spend 30 hours at the rate of $400 per hour on the question of the division of chattels having limited value, given the relatively small amounts in issue and the very limited capital available to the client. Opposing counsel confirmed that she refused to spend time on the issue of division of household goods. They reached the same conclusion on the question of smoking in front of the children. This issue, given the client’s financial circumstances, would not justify more than a few hours of time. These conclusions were entirely reasonable considering the evidence of the client, the lawyer and opposing counsel.

[122] The conclusion of the Appeal Panel, adopting the approach of the Hearing Panel that it was reasonable to assess the question of an appropriate amount for fees globally without independent expert advice is reasonable. This question falls squarely within the expertise of the administrative tribunal. This ground of appeal is dismissed.

QUESTION OF PENALTY

[123] As reflected in the reasons of the Appeal Panel Decision, Mr. Byrnes raised the issue of penalty in his Notice of Appeal but focused his oral submissions entirely on the findings of professional misconduct.

[124] Similarly, although counsel for Mr. Byrnes challenged the penalty imposed of revocation in his factum, counsel made no oral submissions on this issue before this court.

[125] The Appeal Panel confirmed the Penalty Decision that revocation was appropriate given that Mr. Byrnes has two prior convictions with the Law Society and that he showed no remorse.

[126] The Hearing Panel took into consideration a number of factors as to the appropriate penalty including Mr. Byrnes’ lack of remorse and his prior disciplinary record which included a suspension of nine months for misappropriating funds in 1999 and a finding of misconduct for breaching the terms of an escrow agreement in 2003.

[127] The Hearing Panel acknowledged that a case of overbilling would normally not result in the revocation of a lawyer’s licence, but in this case, “[a]nything less would undermine the public’s confidence in the profession” (para. 51). Had it not been for Mr. Byrnes’ past two findings of serious misconduct, the Hearing Panel expressed that the likely penalty would have been a suspension (para. 35).

[128] The Hearing Panel found that “there is a significant risk, if not a certainty that, at some time, at some point, Mr. Byrnes will once again take advantage of a client” (para. 47) and therefore ordered that Mr. Byrnes’ licence to practice law be revoked.

[129] The Appeal Panel confirmed that these findings and conclusions were reasonable.

[130] Decisions on penalty by a professional body are highly discretionary, and ought not to be interfered with. As this court has stated in Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 1979 2045 (ON SC), 26 O.R. (2d) 353 (Div. Ct.), at p. 364:

The discipline committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee.

[131] I find the conclusions of the Appeal Panel adopting the reasons of the Hearing Panel on the question of penalty are reasonable and supported by the evidence. Imposing an appropriate penalty is at the heart of the Appeal Panel’s expertise. There is no merit to this ground of appeal.

CONCLUSION

[132] For these reasons, the appeal is dismissed.

[133] The Law Society seeks costs in the amount of $10,000.00. In the circumstances, given Mr. Byrnes’ situation, costs are fixed payable in the amount of $7,500.00 inclusive of HST and disbursements.

___________________________ J. Wilson J.

I agree Harvison Young J.

I agree Thorburn J.

Released: August 17, 2015

CITATION: Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939

DIVISIONAL COURT FILE NO.: 292/14

DATE: 20150817

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. Wilson, Harvison Young, Thorburn JJ.

BETWEEN:

RODERICK JOHN BYRNES

Appellant

– and –

LAW SOCIETY OF UPPER CANADA

Respondent

REASONS FOR JUDGMENT

Released: August 17, 2015

(JW)