Aubin v. Law Society of Ontario, 2026 ONSC 4377

minicounsel

CITATION: Aubin v. Law Society of Ontario, 2026 ONSC 4377

COURT FILE NO.: DC-25-00000974-00JR

DATE: 20260729

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Corbett, Schreck and Rees JJ.

BETWEEN:

LEANNE AUBIN

Applicant

– and –

LAW SOCIETY OF ONTARIO

Respondent

C. Johnson and E. Taman, for the applicant

S. Anello, for the respondent

HEARD: May 14, 2026

REASONS FOR JUDGMENT

SCHRECK J.:

1The Law Society of Ontario maintains a Compensation Fund ("the Fund") to assist individuals who have suffered losses as a result of dishonesty on the part of a lawyer or paralegal. Section 51(1) of the Law Society Act, R.S.O. 1990, c. L.8 ("LSA") provides that the Law Society's governing body, Convocation, may in its absolute discretion make grants from the Fund to relieve or mitigate the loss sustained by a person "in consequence of … dishonesty on the part of a person, while a licensee, in connection with his or her professional business or in connection with any trust of which he or she was or is a trustee." Convocation has delegated the authority to make such grants to a Compensation Fund Subcommittee. It also created "General Guidelines for the Determination of Grants From the Compensation Fund" ("the Guidelines") for use by the Subcommittee.

2Leeanne Aubin retained a lawyer in 2022 who sexually harassed her and attempted to extort sexual favours from her in exchange for legal services. When she reported the lawyer to the Law Society, he publicly defamed her, threatened to kill her and attempted to procure a firearm with which to do so. Ms. Aubin successfully sued the lawyer and was awarded damages of $195,000.00 plus costs. By the time she did so, the lawyer's licence had been revoked and he was a serving a four-year penitentiary sentence.

3As she was unable to enforce the judgment, Ms. Aubin applied for a grant from the Fund. The Subcommittee was satisfied that Ms. Aubin had suffered significant harm as a result of the lawyer's dishonesty. However, the Guidelines define "loss" as "the difference between what the lawyer … received from the claimant or on the claimant's behalf, and the amount that was earned and accounted for, and/or returned to the claimant." Since the loss Ms. Aubin was seeking compensation for did not meet that definition, the Subcommittee concluded that it was "without jurisdiction" to grant the claim.

4Ms. Aubin applies to this court for judicial review of the Subcommittee's decision. She submits that the Subcommittee fettered its discretion by treating the Guidelines as binding, resulting in an unreasonable decision. The Law Society disagrees and submits that the Subcommittee's decision was the result of a reasonable exercise of its discretion to decide what types of losses should be compensated.

5The following reasons explain why I agree with Ms. Aubin and would grant the application and set aside the Subcommittee's decision.

I. FACTS

A. Chronology of Events

6In June 2022, the applicant, Leanne Aubin, retained a lawyer, James Bowie, to represent her on a criminal charge of assault with a weapon based on an allegation that she had thrown a plastic pitcher at a man in a bar. Mr. Bowie asked for a retainer which the applicant felt she could not afford. In August 2022, after making an application for legal aid which was denied, the applicant asked Mr. Bowie if he would consider a payment plan. He agreed to do so.

7A few weeks later, Mr. Bowie proposed to the applicant that he would provide her with legal representation in exchange for oral sex every two weeks. The applicant refused and instead suggested that she make payments every two weeks. Mr. Bowie persisted in asking the applicant to perform sexual acts and sent her a photograph of his penis. When the applicant told Mr. Bowie that she was suffering from mental distress and having suicidal thoughts, he suggested that she could reduce her stress by having sex with him and consuming alcohol and drugs with him. Mr. Bowie told the applicant that if she told anyone about his communications to her, it could jeopardize her criminal case.

8In September 2022, the applicant retained another lawyer, who arranged to have the charge against her withdrawn within two weeks. With the new lawyer's assistance, she made a complaint about Mr. Bowie to the Law Society, which initiated an investigation into his conduct. Mr. Bowie's licence to practice law was later suspended on January 27, 2023 and eventually revoked on December 1, 2025.

9On November 29, 2022, Mr. Bowie participated in a "chat" on a public social media platform during which he identified the applicant by name. He stated that she had made up the Law Society complaint in order to avoid having to pay him, that she had been the one to send intimate images to him, and that she was a drug user.

B. Legal Proceedings

(i) Civil Proceedings

10The applicant commenced a civil action against Mr. Bowie in January 2023 for breach of fiduciary duty, violations of the Human Rights Code and defamation. On January 10, 2024, in reasons reported as Aubin v. Bowie, 2024 ONSC 5688, a motion by the applicant for default judgment in her civil claim was granted and she was awarded damages totalling $195,000.00 as well as costs of $40,000.

(ii) Criminal Proceedings

11On April 24, 2023, Mr. Bowie was arrested and charged with threatening death, criminal harassment and extortion based on his conduct towards the applicant and allegations that he had asked another person to obtain a firearm for him because he needed the applicant to be "gone."

12Following a trial, Mr. Bowie was convicted on most of the charges. On September 2, 2025 was sentenced to imprisonment for four years.

C. The Law Society Compensation Fund

(i) Relevant Statutory Provisions

13The Law Society Compensation Fund is maintained by the Law Society in accordance with s. 51 of the LSA, which provides that compensation may be granted to individuals in the circumstances described in s. 51(5), the relevant portion of which provides as follows:

51.(5) Convocation in its absolute discretion may make grants from the Fund in order to relieve or mitigate loss sustained by a person in consequence of,

(a) dishonesty on the part of a person, while a licensee, in connection with his or her professional business or in connection with any trust of which he or she was or is a trustee;

As permitted by s. 51(10), Convocation has delegated its power to make decisions with respect to grants to the LSO Compensation Fund Subcommittee.

(ii) The Guidelines

14The Law Society also established "General Guidelines for the Determination of Grants from the Compensation Fund Relating to Lawyers and Paralegals" for use by the Subcommittee. The purpose of the Guidelines is set out in the Preface to them:

These Guidelines outline the general principles that will guide the Compensation Fund in the exercise of its discretion pursuant to the Law Society Act, R.S.O. 1990, c. L.8, s. 51, as am. These Guidelines are not rules, are not exhaustive and will not necessarily apply to every conceivable situation. The facts and circumstances of each case will be carefully considered as part of decision-making.

15Section 8 of the Guidelines states:

Loss: For the purposes of the Compensation Fund, loss is defined as the difference between what the lawyer or licensed paralegal received from the claimant or on the claimant's behalf, and the amount that was earned and accounted for, and/or returned to the claimant.

(iii) The Decision on the Applicant's Claim

16On October 6, 2025, the applicant applied to the Fund seeking compensation for a loss in the amount of $230,000.00, which represents the damages and costs from the civil judgment.

17The applicant's application was considered by the Subcommittee on November 12, 2025. The Minutes of the Subcommittee reflect that a majority of the Subcommittee "considered and approved the decision to close/deny… the claim." Under the heading "Basis for Denial," the Minutes state "Guideline 8 ("loss" definition)."

18On November 21, 2025, counsel for the Subcommittee sent a letter to the applicant ("the Decision Letter") advising her that the claim had been denied and setting out the reasons for the decision. The letter included the following:

The available evidence clearly supports that the Claimant suffered significant harm as a result of the Lawyer's dishonest conduct – that is not in dispute.

The Claimant's arguments are compelling, and the circumstances described are deeply troubling. The Lawyer's actions – including sexual exploitation, threats, and defamatory statements – represent a serious breach of professional and ethical obligations. The civil and criminal findings against him underscore the gravity of the misconduct and the extent of harm suffered by the Claimant.

The Fund is governed by specific criteria under the Fund's Guidelines. Guideline 8 defines "loss" narrowly as:

"Loss is defined as the difference between what the lawyer or licensed paralegal received from the claimant or on the claimant's behalf, and the amount that was earned and accounted for, and/or returned to the claimant."

In this case, as you are aware, the claim does not relate to funds received by the Lawyer from the Claimant or on her behalf that were misappropriated or unaccounted for. The Claimant's losses – while substantial and deserving of recognition – arose from egregious personal misconduct and abuse of the solicitor-client relationship, rather than from financial dishonesty involving trust funds. The Fund's intended mandate is not to underwrite civil judgments or compensate for damages awarded through the courts.

Based on the information and documentation provided, the Compensation Fund does not have sufficient evidence to support a loss that falls within the Guidelines for the payment of grants. We are truly sympathetic to the Claimant's experience and regret that we are without jurisdiction to assist.

II. ANALYSIS

A. Jurisdiction, Standard of Review and Positions of the Parties

19The Subcommittee's decision is subject to judicial review by this court pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. There is no dispute that the applicable standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23.

20The parties agree that s. 51(5) of the LSA gives Convocation, and its delegate, the Subcommittee, a broad discretion with respect to making grants from the Fund. However, the applicant submits that the Subcommittee fettered its own discretion by treating the Guidelines as binding, thereby rendering the decision unreasonable. The respondent submits that the Subcommittee did no such thing. Rather, it reasonably considered the Guidelines in interpreting the statutory purpose of the Fund as set out in s. 51 of the Act.

B. Fettering Discretion: Relevant Legal Principles

21Any discretionary decision-making power of a public administrative body, like all exercises of public authority, must find its source in law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 27-28. The law that gives the decision-maker the discretion also informs how it is exercised, as any such discretion must be exercised in "accord with the purposes for which it was given": Vavilov, at para. 108.

22In exercising discretion, it is entirely appropriate for a decision-maker to create and rely on decision-making guidelines. Such guidelines can serve a useful purpose by ensuring that relevant factors are considered and by promoting consistency: El-Hennawy v. Law Society of Upper Canada, 2014 ONSC 375, 316 O.A.C. 260 (Div. Ct.), at para. 30; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710, at paras. 59. However, such guidelines do not have the force of law and cannot have the effect of superseding the law that is the source of the decision-making power. As stated in Stemijon Investments, at para. 60:

An administrative policy is not law. It cannot cut down the discretion that the law gives to a decision-maker. It cannot amend the legislator's law. A policy can aid or guide the exercise of discretion under a law, but it cannot dictate in a binding way how that discretion is to be exercised.

23It follows from the foregoing that a decision-maker cannot abdicate a statutorily-imposed responsibility to exercise its discretion to guidelines or policies that do not have the force of law, what is often referred to in the caselaw as "fettering discretion." It is well-established that any decision that is the result of a fettered discretion is per se unreasonable: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 60; Maple Lodge Farms v. Government of Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2, at pp. 6-7; Canadian Assn. of Refugee Lawyers v. Canada (Minister of Immigration, Refugees and Citizenship), 2020 FCA 196, 92 Admin. L.R. (6th) 1, at para. 53; Stemijon Investments, at paras. 23-34.

C. Did the Subcommittee Fetter Its Discretion?

(i) The Issue

24As this court recognized in El-Hennawy, at para. 31, the Guidelines in this case are not intended to be binding or to fetter the discretion of the Subcommittee, as is clearly stated in the Preface. The issue in this case is whether despite this, the Subcommittee treated them as binding and thereby fettered its own discretion. In my view, it did. There are several reasons for this conclusion.

(ii) The Guidelines "Define" the term "loss"

25First, while the Guidelines are overall clearly not intended to be binding, the portion relating to the meaning of the term "loss," which the Subcommittee relied on in denying the applicant's claim, is worded in such a way as to suggest otherwise. It purports to "define" the term "For the purposes of the Compensation Fund" and restricts it to losses of money paid by the claimant to the lawyer which are not earned, accounted for or returned to the client.

26 Section 51(5) of the LSA requires only that a loss be sustained by a person "in consequence of . . . dishonesty on the part of a person, while a licensee, in connection with his or her professional business or in connection with any trust of which he or she was or is a trustee." It is clear from the wording of the section that while the term "loss" is not defined, it refers to more than misappropriated trust funds and includes any loss "in connection with" the lawyer's professional business.

27In this case, the Subcommittee was satisfied that the applicant suffered harm as a result of the lawyer's dishonesty and there is no issue that she had been awarded damages for that harm which she was unable to recover. The respondent accepts that it was open to the Subcommittee to grant compensation to the applicant, from which it follows that she suffered a "loss" for the purposes of s. 51(5). The language of the Guidelines, however, suggests that there was no "loss," which supports the conclusion that the Subcommittee fettered its discretion.

(iii) The Language in the Decision Letter

28The language in the Decision Letter from counsel for the Fund supports the conclusion that the Subcommittee fettered its discretion. The letter specifically refers to the term "loss" being "defined" by the Guidelines and states that the claim "does not meet the Fund's definition of compensable loss," suggesting that the Subcommittee did not exercise its discretion to decide whether the loss in this case justified a grant from the Fund. This conclusion is supported by the Subcommittee minutes, which reflect that the sole reason for denying the applicant's claim was "Guideline 8 ("loss" definition)."

29The letter also stated, incorrectly, that the Fund was "governed by specific criteria under the Fund's Guidelines." This reflects a misunderstanding of the purpose of the Guidelines, which is to guide, not govern.

30Finally, the letter ended by stating, "We are truly sympathetic to the Claimant's experience and regret that we are without jurisdiction to assist." Counsel for the respondent submitted in her factum that what was meant by this was that the Subcommittee had determined that the claim "fell outside the scope of the statutory scheme." However, in oral argument counsel conceded that it was open to the Subcommittee to grant all or part of the applicant's claim, so doing so would clearly not fall outside the statutory scheme.

31The word "jurisdiction" has a specific legal meaning when referring to a decision-maker, especially when the term is used by a lawyer, and refers to the scope of a statutory power: Vavilov, at para. 65; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at para. 38. The statement in the Decision Letter that the Subcommittee was "without jurisdiction to assist" can only be understood as expressing a belief on the part of the Subcommittee that it did not have the statutory authority to grant the applicant's claim. This reflects a clear misunderstanding of the powers granted to the Subcommittee by s. 51(5) and shows that it fettered its own discretion.

(iv) Failure to Consider Other Factors

32Finally, the Subcommittee did not consider any factors other than whether the loss in this case met the definition in the Guidelines. Section 51(5) grants the Subcommittee a broad discretion and it is for the Subcommittee to determine what factors are relevant in a given case. Such factors could (but do not have to) include the egregiousness of the lawyer's dishonest conduct, the causal connection between the misconduct and the loss, the extent to which the loss was connected to the lawyer's professional business, and the Law Society's duty, pursuant to s. 4.2 of the LSA, to "advance the cause of justice" and "protect the public interest": El-Hennawy, at paras. 36-39. The fact that no such factors were considered also supports the conclusion that the Subcommittee did not exercise its discretion but, rather, denied the claim because it believed that the Guidelines required it to do so.

(v) Conclusion

33For the foregoing reasons, I am persuaded that the Subcommittee's decision was the result of a fettered discretion and was therefore per se unreasonable.

III. DISPOSITION

34The application is granted, the decision of the Law Society of Ontario Compensation Fund Subcommittee is set aside, and the matter is remitted to the Subcommittee for reconsideration in accordance with these reasons.

35Neither party seeks costs and none are ordered.

Schreck J.

I agree. ______________________________

Corbett J.