CITATION: Law Society of Upper Canada v. Molson, 2016 ONSC 2439
DIVISIONAL COURT FILE NO.: 315/15 DATE: 20160408
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
DAMBROT, STEWART AND THORBURN JJ.
BETWEEN:
LAW SOCIETY OF UPPER CANADA
Respondent
– and –
DAVID HUGH MOLSON
Appellant
Sean Dewart and Chris Donovan, for the Respondent
James C. Morton, for the Appellant
HEARD at Toronto: April 8, 2016
THORBURN J. (ORALLY)
[1] This is an appeal of the decision of the Law Society of Upper Canada Appeal Panel, dated June 5, 2015. The Appeal Panel dismissed the appeal of the penalty imposed by the Hearing Panel. The Hearing Panel required the Appellant to surrender his licence to practice law.
[2] At the Hearing Panel proceeding, the Appellant acknowledged that he had knowingly participated in a series of mortgage frauds. He proposed that the penalty for his misconduct be suspension, or in the alternative, that he surrender his licence. The Hearing Panel acceded to his alternative request to surrender his licence.
[3] Three issues have been advanced by the Appellant Molson on this appeal. First, he claims that a human rights issue concerning his alleged disability ought to have been adjudicated by the Appeal Panel. Second, and in the alternative, he claims that the Appeal Panel should have ordered a new hearing to consider the merits of the human rights issue and, thirdly, he claims that the reasons of the Appeal Panel regarding these two issues were inadequate. The human rights issue was raised for the first time before the Appeal Panel.
[4] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 49.38 of the Law Society Act. Findings of fact, determinations of penalty and discretionary decisions of Law Society panels must be reviewed on a reasonableness standard. (Igbinosun v. Law Society of Upper Canada (2008), 2008 36158 (ON SCDC), 239 O.A.C. 178 (Div. Ct.), aff’d 2009 ONCA 482, 96 O.R. (3d) 138 at para. 9).
[5] In our view, there is no merit to this appeal as the decision of the Appeal Panel was reasonable and their reasons were adequate.
[6] The Appeal Panel held that the human rights issue of the Appellant’s disability should not be permitted to be addressed for the first time on appeal.
[7] The reasons for this decision of the Appeal Panel are found at paras. 33-36 of their decision as follows:
[33] The Appellant’s difficulty is that none of this was argued before the Hearing Division. The panel was not asked to examine the case from a human rights perspective. The result is that there is no analysis by the Hearing Division of whether the Appellant’s medical condition at the relevant time qualified as a disability under the Code. There is no inquiry into whether any such disability was a factor in the Appellant’s behaviour. The Hearing Division did not ask itself whether the Law Society and the Tribunal had a duty to accommodate his special needs in terms of penalty. There was no discussion of the alternatives to revocation or resignation that might have been available as accommodations, and whether any of them would cause undue hardship to the Law Society in its mandate of public protection.
[34] Moreover, the Law Society was not put on notice before the Hearing Division that it needed to address an allegation that its actions, including its penalty submission, would have to withstand a human rights analysis, and the Law Society did not prepare and present evidence on this set of legal issues. Indeed, the Appellant’s position before the Hearing Division was that he did not have a disability, and this presentation might have been different if he were asking for accommodation under the Human Rights Code.
[35] It is noteworthy that even though the parties did not address the Code, the Hearing Division did mention two of this Tribunal’s recent cases on the relevance of mental illness to conduct proceedings: Law Society of Upper Canada v. Kelly, 2011 ONLSHP 88 at para. 32; and Law Society of Upper Canada v. Flumian, 2014 ONLSH 162 at para. 22. Neither of these cases, however, addresses the Human Rights Code.
[36] Thus, while the balance between the individual human rights of the licensee and the protection of the broader public is replicated to a great extent in this Tribunal’s nascent case law on mental health issues constituting “exceptional circumstances”, the reality is that the Human Rights Code analysis requires quite specific findings on a number of legal prerequisites, and the parties did not have an evidentiary hearing on those issues. It would be unfair to the Law Society, and would require quite a different hearing before the Hearing Division, to attempt to address these issues at this late juncture. While the Law Society made a well-reasoned argument in its appeal factum that the facts as found by the Hearing Division, refracted through a human rights lens, would result in the dismissal of Mr. Molson’s human rights argument, this is not the occasion to be undertaking that speculative exercise.
[8] We agree with the submission of the Respondent that it would have been improper for the Appeal Division to order a new hearing with respect to the appellant’s human rights claim as an independent basis for relief without a finding that the Hearing Division had erred in some fashion.
[9] The Appeal Panel’s reasons are not only sufficient to permit an adequate review, they are reasonable and we agree with them. Under the circumstances, there is no need to consider the respondent’s fresh evidence application.
[10] For these reasons, the appeal is dismissed.
DAMBROT J.
COSTS
[11] I have endorsed the Appeal Book, “Appeal dismissed for the oral reasons of the Court delivered by Thorburn J. In the circumstances, we did not consider the respondent’s fresh evidence application. Costs to the Law Society of Upper Canada fixed at $12,500 all inclusive on consent.”
___________________________ THORBURN J.
DAMBROT J.
STEWART J.
Date of Reasons for Judgment: April 8, 2016
Date of Release: May 3, 2016
CITATION: Law Society of Upper Canada v. Molson, 2016 ONSC 2439
DIVISIONAL COURT FILE NO.: 315/15 DATE: 20160408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, STEWART AND THORBURN JJ.
BETWEEN:
LAW SOCIETY OF UPPER CANADA
Respondent
– and –
DAVID HUGH MOLSON
Appellant
ORAL REASONS FOR JUDGMENT
THORBURN J.
Date of Reasons for Judgment: April 8, 2016
Date of Release: May 3, 2016