Court File and Parties

CITATION: Mundulai v. Law Society of Ontario, 2018 ONSC 6965

DIVISIONAL COURT FILE NO.: 117/18 DATE: 20181122

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LOCOCO, TRIMBLE, and MYERS JJ.

BETWEEN:

ALIAMISSE MUNDULAI Applicant

– and –

LAW SOCIETY OF ONTARIO Respondent

COUNSEL: Aliamisse Mundulai, acting in person Leslie Maunder, for the Respondent

HEARD at Toronto: November 20, 2018

Reasons for Judgment

TRIMBLE, J.

NATURE OF PROCEEDING:

[1] Mr. Mundulai brings this Application for an order in the nature of mandamus compelling the Law Society of Ontario (The Law Society of Upper Canada when this Application was brought) to issue to Mr. Mundulai an L1 licence to practice law in Ontario pursuant to s. 27(3) of the Law Society Act, R.S.O. 1990, c. L.8 (the “Act”).

FACTS:

[2] Mr. Mundulai was called to the bar in 2005. On February 28th 2012, a Law Society Hearing Panel revoked Mr. Mundulai’s licence having found that he was ungovernable. In reaching this decision, the Panel reviewed Mr. Mundulai’s disciplinary history that included four proceedings between 2007 and 2011 in which Mr. Mundulai was disciplined, the last of which resulted in his licence being revoked.

[3] Mr. Mundulai was suspended in 2007 for one month for failing to cooperate with the Society’s investigation.

[4] In 2008, he was suspended for six months for failing to conduct himself with integrity and failing to have treated courts with candor by breaching a condition of his bail that he not practice criminal law unless under direct supervision. His appeal was quashed and his motion to stay the disciplinary process was dismissed, as was his Application for Judicial Review and appeal therefrom.

[5] In 2010, Mr. Mundulai was suspended for four months for failing to respond and/or cooperate with seven investigations. His appeals were dismissed.

[6] Finally, in 2012, his licence was revoked. He was found to have failed to treat the court with courtesy and respect, failed to conduct himself with integrity, and failed to deliver a client file as required upon being discharged. His internal appeal was dismissed as was his appeal to Divisional Court and his application for Leave to Appeal to the Court of Appeal.

[7] On May 27, 2015, Mr. Mundulai applied to the Law Society for a licence. Mr. Mundulai contends that he met all the qualifications under the Act to be licenced.

[8] The Society, given Mr. Mundulai’s history, ordered an investigation into Mr. Mundulai’s character pursuant to s. 27(2) of the Act.

[9] Investigator Nicole Gajraj conducted an investigation and on July 20, 2016 she prepared an Investigation Report and recommended that a good character hearing be held pursuant to s. 27(4) of the Act. Ms. Gajraj reviewed Mr. Mundulai’s discipline history, his criminal conviction, and his professional rehabilitation efforts since his licence was revoked and determined that:

(1) Instead of demonstrating regret or remorse for his past professional misconduct, Mr. Mundulai provided explanations, illustrating his lack of behavioral insight;

(2) The serious nature of Mr. Mundulai’s past misconduct and criminal conviction since his licence revocation raises concerns about his character;

(3) There are concerns as to whether Mr. Mundulai satisfied Court ordered costs in a number of matters;

(4) Outside of Mr. Mundulai’s post-graduate pursuits, there is little evidence of rehabilitation efforts that address his past misconduct; and

(5) Mr. Mundulai had exhausted the appeals process and utilized all judicial avenues to overturn the disbarment decision. This raises concern that Mr. Mundulai failed to understand his professional misconduct.

[10] The convictions Ms. Gajraj referred to were to Mr. Mundulai’s February 21, 2013 conviction for impaired driving and failing to provide a breath sample following a motor vehicle accident on August 23, 2011.

[11] On December 20, 2016, the Society filed a Notice of Referral for Hearing with the Law Society Tribunal pursuant to ss. 27(2) and 27(4) of the Act.

[12] On October 30, 2017, Mr. Mundulai served and filed a motion with the Tribunal to quash the Notice of Referral on the grounds that (1) the Title of Proceedings was irregular, and (2) the Notice contained no particulars of the character allegations which were the basis for the referral. Mr. Mundulai requested that the Society grant him a license, or in the alternative, order the Society to provide him with additional disclosure.

[13] Mr. Mundulai’s motion was heard on November 20, 2017. In oral submissions, Mr. Mundulai advanced three arguments. First, he said that the Notice listed him as the Applicant and the Society as the Respondent. It should have been the reverse. It was the Society’s application for a Hearing. Further, the Society, by using the Title of Proceeding it used, was attempting to reverse the burden. Mr. Mundulai said that the Society had the burden to prove he did not meet the licence criteria.

[14] Second, the Notice did not provide particulars about the Society’s character allegations against him. Section 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. 22 (“SPPA”) requires such particulars. He was unable to make a full answer and defence without these particulars.

[15] Third, he said that unless the Society could successfully prove that he did not meet the licencing requirements, s. 27(4) of the Act required the Society to issue him a licence.

[16] The Society argued that by disclosing the Investigation Report to Mr. Mundulai (along with other disclosure) on January 30, 2017, it fulfilled its disclosure obligations. By providing Mr. Mundulai with a hearing, the Society provided him an opportunity to respond and establish his good character. Further, it argued that the Notice was appropriate, since the Notice of Referral to a Hearing was a notice within Mr. Mundulai’s Application for licence. The burden was his to satisfy he met the requirements for licence.

[17] While Mr. Mundulai initially sought to have the Notice of Referral quashed, the parties agreed to a dismissal of Mr. Mundulai’s Licence Application without costs. Because the Chair, acting alone, did not have the jurisdiction to dismiss the Licence Application, the parties signed a consent to be considered by a three-member panel, in writing. The consent, signed November 20th, 2017, specified that “the parties consent to an order dismissing this application without costs”.

[18] There was much discussion on the record, before the consent was signed, about what was being dismissed (see, for example, pages 135 to 145 of the transcript). Mr. Mundulai now insists that the only thing he agreed to dismiss was the Notice of Referral. The Society and the Chair hearing the motion were clear that what was being dismissed was Mr. Mundulai’s whole Licence Application. Mr. Mundulai was offered the services of duty counsel before he signed the consent, but declined.

[19] Once the Order was issued on November 21, 2017, Mr. Mundulai requested its correction to read that only the Notice of Referral was being dismissed on consent. The Tribunal disagreed and refused to change it, relying on the signed consent (see the Tribunal’s endorsement dated February 6, 2018).

JURISDICTION

[20] Pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to hear an application for judicial review.

STANDARD OF REVIEW

[21] The standard of review to be applied to the Law Society of Ontario’s Discipline Committee is correctness on questions of law and reasonableness when the Law Society is interpreting its own legislation, on questions of mixed fact and law, or fact alone (see: Groia v LSUC, 2018 SCC 27).

RESULT AND ANALYSIS:

[22] The Application is dismissed.

1) Mandamus

[23] Mr. Mundulai seeks an order in the nature of mandamus.

[24] The prerogative writ of mandamus is one of the equitable remedies available to the Crown, the purpose of which is to provide a remedy where there is a legal right, an injury to that right, but no legal remedy. It is a discretionary remedy, employed usually when an authority is asked to exercise a power it is required to exercise, but refuses to do so.

[25] Mr. Mundulai argues that pursuant to 27(3) of the Act, once he has established that he meets the licensing requirements, “…the Society shall issue a licence of that class to the applicant”. He says that he meets all the licensing requirements. Further, he argues that the Society can only refuse him a licence after a hearing. In this case, since the hearing was dismissed, the Society must issue him a licence.

[26] The Federal Court, in Apotex Inc. v. Canada (A.G.), 1993 3004 (FCA), [1994] 1 F.C. 742 (Fed. C.A.) at para. 45, aff'd 1994 47 (SCC), [1994] SCJ No. 113. [1994] 1 F.C. 742, set out mandatory conditions that must be fulfilled before a court will issue an order of mandamus. The conditions include:

(1) there must be a public legal duty (as opposed to a mere power) to act;

(2) the duty must be owed to the Applicant;

(3) there must be a clear right to expect performance of the duty and all conditions precedent giving rise to the duty must be satisfied including the demand that the duty be exercised and a refusal to do so;

(4) where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair""oppressive" or demonstrate "flagrant impropriety" or "bad faith";

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified""absolute""permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;

(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) mandamus is only available when the decision-maker's discretion is "spent", i.e., the claimant has a vested right to the performance of the duty.

(5) the applicant must have no other remedy or recourse available to him;

(6) the order sought must be of some practical value or effect;

(7) there must be no equitable bar to the court granting mandamus;and

(8) the balance of convenience must favour the granting of mandamus.

[27] Among other things, the Society argued that a number of conditions that must be fulfilled before a Court can order mandamus, have not been met. For the purpose of this judicial review application, I need only address one of those conditions.

[28] This Application fails on the fact that Mr. Mundulai has a remedy or resource available to him; he can re-apply for a licence. If he does so, he will have the opportunity to establish his good character, one of the conditions precedent to being granted a licence to practice law. Under s. 27(4), of the Act, the Society may not refuse a licence without a hearing upon the Society’s referral to the Tribunal. If a referral is made, Mr. Mundulai will have the opportunity to establish that he meets the requirements for the licence as a lawyer in Ontario.

2) Process

[29] While the decision with respect to mandamus is sufficient to dispose of the Application, we turn to Mr. Mundulai’s argument that the process was unfair.

[30] Mr. Mundulai’s arguments all focus on what he says is the Society’s reversal of the burden of proof, whether by naming him as the Applicant, or through the requirement that he establish his good character in the licensing process. He asserts that it is the Society that bears the burden to prove he lacks good character and, to that end, he relies on s. 8 of the SPPA as imposing an obligation on the Society to provide him with full particulars of any allegations that it makes.

[31] The Society disagrees, arguing that since Mr. Mundulai brought a licence application, it is Mr. Mundulai’s burden to satisfy the Tribunal of his good character, a requirement for a licence. Under s. 27(4) of the Act, once the Society raises a concern about whether Mr. Mundulai meets the criteria for licence, it is required to provide a hearing at which Mr. Mundulai can address his qualification for licence. Following the hearing, the Society can make its decision as to whether Mr. Mundulai has met the required criteria.

[32] In any event, the Society says that it is entitled to rely upon the findings of the Tribunal with respect to Mr. Mundulai’s disbarment, which are res judicata and serve as prima facie proof of Mr. Mundulai’s lack of good character. The Investigation Report provides full particulars of the findings that are binding on Mr. Mundulai on which the Society relies.

[33] There is ample case law supporting the Society’s entitlement to rely on the prior disbarment to meet its initial burden at a licensing hearing to demonstrate that the applicant may not meet the good character requirement. Thereafter, an evidentiary burden falls on the applicant to establish that, despite his or her prior misconduct, he or she now meets the good character requirement. The applicable law concerning the process was discussed before the Tribunal below.

[34] Mr. Mundulai simply does not accept this approach. He insisted upon acting on his own view of the applicable law and procedure despite very clear efforts by the Society and the Tribunal to bring home to Mr. Mundulai the impact of the steps that he proposed. The Society fulfilled its duty to consider Mr. Mundulai’s application. The hearing of Mr. Mundulai’s motion to quash the Notice of Referral ended in a consent to dismissal of his licence application, the consequences of which were brought home to Mr. Mundulai in clear and plain language. Until Mr. Mundulai applies again, there is no duty on the Society to conduct a further hearing into Mr. Mundulai’s application. It had been dismissed.

[35] For the reasons above, Mr. Mundulai’s Application for judicial review and an order in the nature of mandamus is dismissed.

LOCOCO J.

[36] I have endorsed the Appeal Book as follows: “For the reasons given in writing today by Trimble J., the Application for judicial review and an order in the nature of mandamus is dismissed. The applicant shall pay costs of $5,000 inclusive of disbursements and taxes to the respondent.”

TRIMBLE J.

I agree

LOCOCO J.

I agree

MYERS J.

Date of Release: November 22, 2018

CITATION: Mundulai v. Law Society of Ontario, 2018 ONSC 6965 DIVISIONAL COURT FILE NO.: 117/18 DATE: 20181122

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LOCOCO, TRIMBLE, and MYERS JJ.

BETWEEN:

ALIAMISSE MUNDULAI Applicant

– and –

LAW SOCIETY OF ONTARIO Respondent

REASONS FOR JUDGMENT

TRIMBLE J.

Date of Release: November 22, 2018