Guiste v. Law Society of Ontario, 2026 ONSC 4419

minicounsel

Footnotes

Reported as Law Society of Ontario v. Guiste, 2023 ONLSTH 59.
Reported as Law Society of Ontario v. Guiste, 2024 ONLSTH 78.
Reported as Guiste v. Law Society of Ontario, 2025 ONLSTA 17.
The mistrial ruling is reported as R. v. Ram, 2015 ONCJ 200.
The admissibility of Mr. Bergman’s evidence was the subject of two pre-hearing rulings by the Hearing Panel which are reported as Law Society of Ontario v. Guiste, 2019 ONLSTH 153 and Law Society of Ontario v. Guiste, 2021 ONLSTH 71. The issue was also addressed by the Hearing Panel in its decision on the merits at paras. 158-159.
While the law may have been unclear at the time of the Ram trial, it is doubtful that a police investigative policy would be treated as first-party disclosure today: R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at paras. 18-22; R. v. Zameer, 2023 ONSC 6396, at para. 4.
In its submissions, the respondent also relied on Clokie, which is not a Law Society case, where a costs award of $318,297.87 was upheld by this court. The court noted that there was no evidence of the financial impact of the costs award: Clokie, at paras. 66, 73.
The Appeal Panel’s costs decision has not been appealed.

CITATION: Guiste v. Law Society of Ontario, 2026 ONSC 4419

COURT FILE NO.: DC-25-00000670-0000

DATE: 20260730

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Matheson, Schreck and Brownstone JJ.

BETWEEN:

ERNEST GUISTE

Appellant

– and –

LAW SOCIETY OF ONTARIO

Respondent

P. Slanksy, for the appellant

M. Anderson and J. Schwartz, for the respondent

HEARD: January 26, 2026

REASONS FOR JUDGMENT

SCHRECK J. (dissenting in part):

1Ernest Guiste is a lawyer who represents individuals in criminal, civil and other matters. Mr. Guiste is Black and his clients include many racialized individuals from disadvantaged backgrounds.

2Mr. Guiste represented individuals in two unrelated criminal trials that took place between 2013 and 2015. Following an investigation, the Law Society of Ontario alleged that Mr. Guiste engaged in professional misconduct by engaging in uncivil behaviour at both trials, failing to competently represent his client at one of the trials, and failing to act with integrity. Following a lengthy hearing, a panel of the Hearing Division of the Law Society Tribunal found that the allegations were proven.¹ The Hearing Panel imposed a three-month suspension, and ordered that Mr. Guiste pay costs of $225,000 to the Law Society.² Mr. Guiste’s appeal to the Appeal Division of the Tribunal was dismissed.³

3Mr. Guiste now appeals to this court against the findings, penalty and costs order on a number of grounds. The overarching theme of his submissions is that he conducted himself in the way that he did to comply with his duty to provide his clients with resolute advocacy and that the Hearing Panel erred by failing to recognize this and that criminal trials are not “tea parties.”

4I would dismiss the appeal against the findings and penalty. I agree that an appropriate balance must be struck between a lawyer’s duty of civility and his or her primary duty of resolute advocacy, and that the former cannot overshadow or compromise the latter. This can be accomplished by ensuring that the concept of incivility is properly defined and appropriately circumscribed such that it does not interfere with a lawyer’s duty to fully represent the client. The Hearing Panel did so, its findings reflect no error, and the Appeal Panel did not err in upholding the decision. I am also not persuaded that the Hearing Panel committed any error in principle in determining the penalty or that it was unfit.

5Unlike my colleagues, I take a different view with respect to the costs order. In my view, the Hearing Panel erred in its determination of costs resulting in an amount that was excessive, unreasonable and effectively punitive.

6The following reasons explain these conclusions.

I. FACTS

A. The Appellant’s Background

7The appellant obtained a law degree from the University of Windsor in 1991, after which he completed his articles of clerkship, partly at the Ontario Labour Relations Board and partly with a law firm in Toronto. He was called to the Ontario Bar in 1993 and since then has been practicing as a sole practitioner in the Greater Toronto Area. He testified that he represents clients in a variety of matters, including criminal, civil, employment, immigration, human rights and professional discipline.

8The appellant is Black and most of his clients are Black or from other racialized groups. Many of them come from disadvantaged circumstances. He testified that his representation of his clients often involves issues of racial discrimination, something he has personally experienced.

B. The R. v. Street Trial

(i) Overview

9J. Street was charged with two counts of assault in relation to his spouse and her sister. Mr. Street and both complainants were Black. The appellant represented Mr. Street at his trial, which took place in the Ontario Court of Justice before Brewer J. over the course of seven days in March, May, August and November 2013 and February and April 2014. Crown counsel initially assigned to the case was John Rinaldi.

(ii) The Crown’s Decision Not to Call a Complainant

10On the first day of Mr. Street’s trial in March 2013, his spouse, Ms. T., told Mr. Rinaldi that she wished to change the statement she had provided to the police. According to Mr. Rinaldi, he told her to speak to the officer in charge of the investigation. According to the appellant, Ms. T. told him that Mr. Rinaldi had called her a “liar.” He relayed this to Mr. Rinaldi, who denied it.

11As a result of Ms. T.’s recantation, Mr. Rinaldi decided not to call her as a witness and to rely on the evidence of the second complainant and a police officer, as well as a recording of Ms. T.’s 911 call. The appellant testified before the hearing panel that he viewed this as an unprecedented decision and had never before encountered a case where the Crown failed to call a complainant. He decided to call Ms. T. as a defence witness and did so on March 22, 2013.

(iii) The Appellant’s Comments Respecting the Abuse of Process Application

12During her examination-in-chief, the appellant asked Ms. T. about her conversation with Mr. Rinaldi. Mr. Rinaldi objected to this evidence on the basis that it was irrelevant and “privileged.” The appellant submitted that the evidence was relevant to establish that “the authorities were never interested in getting her version of what actually occurred.” He told the court that it appeared to him that “the police and the authorities are more interested in making a criminal out of Mr. Street, in the absence of evidence, than in terms of getting at the truth.”

13The appellant advised the trial judge that he may ultimately submit that the Crown was not entitled to continue the prosecution because “they are barred from the doctrine of abuse of process.” He continued as follows:

Nobody wants to hear her version, because it’s not consistent with their theory of criminalizing an African-Canadian man, who they simply want to criminalize because they have the power to do so.

Mr. Rinaldi responded by inviting the appellant to file materials in support of an abuse of process application, but maintained that Ms. T’s evidence about her conversation with him was irrelevant to any issue at trial. He also said, “This has nothing to do with anybody being African-Canadian, or anything like that.”

14The appellant responded that “the abuse of process can be brought at any time” because it is a “common law doctrine” and that the Crown is “going to get notice in submissions.” He maintained that Ms. T.’s conversation was relevant. When the trial judge asked the appellant whether he anticipated that Ms. T. would say that her concerns had been dismissed, the appellant responded that “they were dismissed in a manner that I would submit is repugnant for … an agent of the Ministry of the Attorney General …that is supposed to prosecute cases to see that justice is done.”

15During the appellant’s submissions, the following exchange took place between him and the trial judge:

THE COURT: Well, what do you anticipate the evidence is going to be? I do not understand –

THE APPELLANT: I don’t want to tell you, because my experience in courts has been many a judge is there to try to assist the Crown, and for –

THE COURT: Are you suggesting that is my role?

THE APPELLANT: I don’t know what your role is, but I know what my role is. My role is to defend this man, and I think she has relevant evidence to give with respect to the manner in which the Crown dealt with her, and I don’t see any privilege that attaches to that.

THE COURT: The reason I am asking you is because it seems to me that under the rules there should have been an application brought that would indicate you were seeking a stay of proceedings for abuse of process, which would have delineated…

THE APPELLANT: I may –

THE COURT: … what the basis for that is, and which would have given the Crown an opportunity to respond.

THE APPELLANT: I may or may not do that. The case is not finished. This case may go on to another day and I may still do that. So, do not try to use that as an excuse or a justification.

THE COURT: I am not trying to use that as an excuse…

THE APPELLANT: Okay.

THE COURT: … or a justification. I am trying to suggest that there are ways of properly bringing these matters before the Court, so that they may be orderly addressed.

THE APPELLANT: I haven’t brought it. It’s an option. The case is not concluded yet. I still believe I have a right to do it orally. I can do it in writing. It’s something…

THE COURT: Well, you do…

THE APPELLANT: … that I raise.

THE COURT: … not have a right to do it orally. The rules require that it be done in writing.

The appellant continued to argue that the evidence he wished to adduce from Ms. T. was relevant, but refused to bring a stay application. Mr. Rinaldi pointed out that he may have to withdraw and become a witness on a stay application, to which the appellant said, “You’d never admit it, would you?” Immediately following this, he told the trial judge that he was going to “abandon all this nonsense.”

(iv) The Appellant’s Comments During the Cross-Examination of the Complainant

16During Mr. Rinaldi’s cross-examination of Ms. T., the appellant objected to questions on several occasions but was overruled. At one point, he said, “Your Honour, you’ve got to, you’ve got to do your job now.” He later said, “Your Honour, I would’ve thought that you would have intervened, as the trial judge, but what’s the purpose of this?”

17Also during the cross-examination of Ms. T., the appellant said to her, “[Ms. T.], he wants to make the trial longer, so just be calm, and let him blab. . . and it will be okay.”

18When Mr. Rinaldi questioned Ms. T. about her initial statement to the police and whether it was true, the appellant said:

Your Honour, my friend is being very disrespectful to this witness, and I don’t know if it’s on account of her race, or what it is, but can you please caution him to let her finish her narrative? He keeps interrupting, and bellowing like he’s some big, bad-ass dog or something.

The trial judge observed that Mr. Rinaldi had not been interrupting. Mr. Rinaldi then asked the trial judge to adjourn the trial because he had “had enough of this.” He stated that he viewed the appellant’s comments as “completely slanderous and inappropriate.” He told the court that he intended to make a complaint to the Law Society and to ask a colleague to continue the trial in his place.

19The appellant advised the court that he had apologized to Mr. Rinaldi, but Mr. Rinaldi did not accept the apology. The appellant later wrote to Mr. Rinaldi and apologized again, stating that his comments were completely inappropriate and that he regretted his choice of words. Mr. Rinaldi did not accept this apology either.

(v) Further Comments Respecting the Abuse of Process Application

20The trial was adjourned to July 18, 2013 and Mr. Rinaldi was replaced by another prosecutor. When the trial resumed, the appellant filed materials in support of a stay application based on the failure of the police to follow their domestic violence protocol during their investigation. On August 13, 2013, he advised the court that he wished to amend his stay application to also rely on Mr. Rinaldi’s conduct in “abandoning the trial” and in delaying the making of his complaint to the Law Society, which had still not occurred. The trial judge declined to allow the amendment because Mr. Rinaldi’s conduct was known at the time the initial application was filed. In response to being told this, the appellant said, “Well, Your Honour, I don’t think you’re listening to me very carefully so I’m going to be very . . . precise.”

21The trial eventually ended in July 2014 with Mr. Street’s acquittal. The stay application was dismissed.

(vi) The Appellant’s Testimony Before the Hearing Panel

22The appellant testified that he had a strong belief that the way that Mr. Street had been investigated by the police and prosecuted by the Crown involved racial profiling and he therefore had an obligation to raise this as an issue. In particular, he believed that the failure of the police to follow their own domestic violence protocol and the Crown’s decision to continue the prosecution despite Ms. T.’s recantation were racially motivated. While the appellant did not allege overt racism on the part of Crown counsel, he testified that he believed that Mr. Rinaldi was unconsciously biased.

23The appellant also viewed Mr. Rinaldi’s cross-examination of Ms. T. as abusive and believed that it was conducted that way because she was Black. He felt that he had a duty to protect her because the trial judge had failed to do so. The appellant was also of the view that the trial judge was partial to the Crown based on the fact that she had been employed as Crown counsel prior to her judicial appointment. He testified that he felt it necessary to “admonish or bring to Justice Brewer’s attention the fact that I perceived that she was not doing her job.”

C. The R. v. Ram Trial

(i) Overview

24F. Ram retained the appellant to represent him in relation to charges of having assaulted his spouse. Mr. Ram was from Trinidad and of East Indian origin. His trial took place in the Ontario Court of Justice before De Filippis J. over the course of five days between October 2014 and April 2015. Crown counsel assigned to prosecute the case was Megan Allan.

(ii) Third-Party Records and Abuse of Process Applications

25The appellant brought an application to stay the proceedings as an abuse of process based on the police’s failure to follow their own domestic violence protocol. The appellant took the position that the Crown was required to disclose the protocol in accordance with R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Crown refused to disclose it and took the position that the defence was required to bring a third-party records application in accordance with the procedure set out in R. v. O’Connor, [1995] 4 S.C.R. 411. The trial judge agreed with the Crown.

26The appellant later served the police with a subpoena duces tecum requiring production of the protocol as well as his client’s file. When the police produced the client’s file, the appellant advised the court that it was irrelevant and denied ever requesting it. The police did not produce the domestic violence policy in accordance with the subpoena. The appellant took no further steps to obtain it and ultimately did not pursue the third-party records application.

(iii) The Appellant’s Comments Respecting the Disclosure Disk

27At the beginning of the trial, the appellant stated that he believed that some police notes of an interview with the complainant had not been disclosed to him. Crown counsel, Ms. Allan responded that the notes had been disclosed, which the appellant stated was a “very, very serious attack with respect to my integrity.” The trial judge disagreed with this characterization.

28The appellant provided Ms. Allan with the disclosure disk so that she could ascertain what had been disclosed. She later returned it to him and advised him and the court that the police notes were on the disk. The appellant then said the following in open court:

Over the course of lunch, when we broke my friend said, “Oh well, can I have your disk and I will see whether there’s an issue with it?”, and not thinking anything I said, “Okay”, and I told my client that. He says, “Why would you do that, you’re probably going to get back another disk.” I said, “Well, I don’t – I’m very innocent, I don’t think – why? Why would somebody do that?” But in any event, a disk has been provided to me. I now see that this disk seems to have information that wasn’t on the other disk, all right. … my concern was I don’t know why on Earth I decided to give my friend my copy of my disk and what that would solve because we had already discussed it and I told her I had reviewed the disk, I’m very familiar with disks, I knew what was on my disk. … I don’t know what she did with it… If she’s trying to tell me that somehow it was there and I didn’t see it, I think that’s unlikely, but I think we can move on. I’ve said what I had to say, I should have kept my disk, I shouldn’t have allowed it to go out of my possession, but it did. I don’t know what happened to it. I’m not suggesting anybody did anything. We could all be mistaken, who knows….

The appellant later apologized to Crown counsel for making these comments.

(iv) Cross-Examination of the Complainant

29The following exchange occurred during the appellant’s cross-examination of the complainant:

THE APPELLANT: And isn’t it true that good Mr. Ram got you a gift and a card for your birthday?

THE WITNESS: I don’t recall that, no.

THE APPELLANT: Well we’re gonna hear from him, and his evidence will be very clear – you keep it in your little mind that…

THE COURT: No, no, no. No, no. No, no. You will not…

THE APPELLANT: Oh, I’m sorry.

THE COURT: You should be.

THE APPELLANT: I should not have said that.

30During the cross-examination of the same witness on a different date, the following occurred:

THE APPELLANT: … all right. Now, during those six hours did you use your phone?

THE WITNESS: No, I didn’t.

THE APPELLANT: No telephone calls, received or made?

THE WITNESS: No.

THE APPELLANT: No conversations with Mommy or Daddy?

THE COURT: Mom and Dad, please.

THE APPELLANT: Mom and Dad.

THE COURT: Yes, she’s an adult, not a child, Mr. Guiste, please.

THE APPELLANT: Okay. Sorry.

(v) Events Following the Closing of the Crown’s Case

31The appellant still intended to bring his third party records application at the time the Crown closed its case and had discussions with the trial judge and Crown counsel about scheduling a time for it to be heard. The trial judge suggested that the trial could proceed in the meantime and asked the appellant whether he would call his client as a witness. The appellant objected to disclosing whether his client would testify because he believed that there was outstanding disclosure and took the position that the Crown’s case was not yet complete because it had not responded to his stay application. The trial judge advised the appellant that he would hear the stay application after the trial, but only if Mr. Ram was found guilty, so the Crown’s case was closed.

32The appellant acknowledged that the outstanding disclosure would not impact his client’s testimony, but nonetheless took the position that his client should not have to elect whether to call evidence before receiving it. The trial judge expressed the view that the disclosure issue ought to have been raised earlier and told the appellant that if he intended to call his client, he should do so at that time in order to make use of available court time. The appellant replied that he would call his client, but said, “I’m only doing so at your direction.” The trial judge clarified that he had made no such direction and that it was for Mr. Ram to decide whether he wished to testify. The appellant then called Mr. Ram as a witness.

33Mr. Ram’s testimony did not finish that day, so further dates had to be scheduled. In response to a question from the trial judge, the appellant indicated that in addition to his client, he intended to call police officers as defence witnesses. He confirmed this again when the trial continued in February 2015.

(vi) Mr. Ram’s Testimony and the Closing of the Defence Case

34During his testimony, Mr. Ram acknowledged that he had lifted the complainant up by the waist and walked her to the door because she was screaming and behaving irrationally. He agreed that she did not go to the door willingly and that he had “made her go to the front door.” After his evidence was complete, the trial judge asked the appellant whether he intended to call any more evidence. The appellant replied that he would call a police officer. When asked whether the officer’s evidence was in relation to the stay application, the appellant replied, “not necessarily.” The trial judge reminded the appellant that he did not intend to rule on the stay application unless there was a conviction. The appellant told the trial judge that he had no more evidence to call and closed his case.

35After the close of the defence case, the trial judge invited the appellant to make submissions on whether Mr. Ram’s testimony amounted to an admission that he had committed an assault. The appellant responded by requesting a adjournment so that he could review the evidence and because there was a “need for jurisprudence.” The trial judge agreed that the matter would continue the following day.

36The following day, the appellant advised the trial judge that he had wanted to call two police officers as witnesses and also said:

You were of the view that I should call my client now, and I resisted as much as I could, but the tenor of your voice, and your direction was such that I figured, okay, well, if he wants to hear from the client … I had indicated my reluctance. I wanted to hear from the officers ….

When asked by the trial judge why he had closed his case, the appellant replied that he had been “confused” and had done so “inadvertently.”

(vii) The Mistrial

37The trial judge did not permit the appellant to call the police witnesses and instead declared a mistrial on his own motion. He gave the following reasons for doing so:

I’ve come to the conclusion that I have no confidence in the ability of this lawyer to represent this client. I’ve wondered about that off and on during the trial. His comments today have crystallized that. In my view, I have no alternative but to declare a mistrial in this case.

38The trial judge later released written reasons, which began with a summary of his reasons for declaring a mistrial:⁴

I appreciate the challenges inherent in the litigation process and that mistakes will inevitably occur. What I do demand is a minimum level of competence. That Mr. Guiste failed to meet this standard is demonstrated by a fair reading of the trial as a whole; it is not one incident, but the cumulative effect. This record includes an incomplete motion to stay proceedings, a confusing request for records, repetitious, irrelevant, and meaningless questions, inattentiveness to the evidence, incivility, and inadequate review of the disclosure material. A dispute about the latter resulted in a baseless allegation of prosecutorial misconduct. That these matters reflect inadequate preparation for trial was illuminated by counsel’s unwillingness or inability to answer clear and simple questions put to him by me during submissions and closing his case before all Defence witnesses had been called. Taken together, these incidents persuade me that Mr. Guiste provided ineffective assistance to his client.

(viii) The Appellant’s Testimony

39The appellant testified before the Hearing Panel that his comments about giving the disclosure disk to Crown counsel were based on a mistaken understanding and carelessness on his part in relying on his client’s comments.

40According to the appellant, the trial judge’s decision to declare a mistrial was done to “save the police.” He also believed that the decision was racially motivated, although not consciously so:

I feel that when you look at the totality of the factual circumstances in the – his award and the trial transcripts, that he treated me in a manner that he would never have treated prominent white lawyers -- and I’m not necessarily a prominent black lawyer -- but a lawyer of my vintage – with respect to defending a client. And in all of the circumstances, his errors of law and the procedural irregularities that he made with respect to some of the criticisms and rebukes that he made, which were clearly of a nature to deprive my client of a fair trial. In all of the circumstances, in my view, there is circumstantial evidence that can be found that one can make a finding that that could amount to a racial profiling issue….

There can be unconscious bias with respect to the treatment of racialized minorities. Mr. Justice De Filippis could have been totally clueless, because of his upbringing, his cultural background – I believe he’s Portuguese. From my knowledge, the Portuguese were one of the worst slave holders and colonizers in history. So, with respect to that question of whether he was motivated, I don’t know whether he was motivated. All I know is that when you put all the factual circumstances and the matrix together, one can draw a reasonable inference that my race was a likely factor in the differential treatment I received from him.

D. Expert Evidence

41The Hearing Panel admitted opinion evidence in the form of a report and testimony from a criminal lawyer, Scott Bergman (now Bergman J.) with respect to the standard of competence of a criminal defence lawyer and whether the appellant fell below that standard in his conduct of the Ram trial.

42Mr. Bergman was provided with transcripts from the trial, documents prepared by the appellant that were filed at trial, De Filippis J.’s ruling, and various correspondence. In his report, he expressed the opinion that the appellant fell below the standard of a reasonably competent lawyer in how he brought the motions for a stay of proceedings and third party records, how he closed the defence case and in his general conduct of the trial.

E. The Hearing Panel’s Conclusions

43The Hearing Panel concluded that the appellant had committed professional misconduct in the following ways during Mr. Street’s trial:

Failing to treat the court with respect. The Hearing Panel rejected the appellant’s explanation for the comments he made to the trial judge and found that his criticisms of her were unfounded and not made in good faith (paras. 74-75).
Failing to be civil and courteous with Crown counsel. The Hearing Panel concluded that the appellant knew that was no reasonable basis for making the comments he did about Crown counsel, nor were they “designed to serve any purpose in advancing Mr. Street’s cause.” The Hearing Panel rejected the appellant’s position that he had a good faith belief that Crown counsel’s actions were racially motivated or that his cross-examination of the complainant was abusive (paras. 76-115).

44The Hearing Panel concluded that the appellant committed professional misconduct in the following ways during Mr. Ram’s trial:

Failing to be civil with Crown counsel. The Hearing Panel found that the appellant had no good faith belief that Crown counsel had tampered with the disk and his allegation that she did so was made deliberately, not carelessly (paras. 127-143).
Incivility to a witness. The Hearing Panel concluded that the two comments the appellant made to the complainant were “disrespectful and demeaning and sought to infantilize the complainant” (paras. 144-147).
Failure to serve in a competent manner. Based on the trial judge’s ruling and Mr. Bergman’s opinion, the Hearing Panel concluded that the appellant failed to research and understand the law respecting third-party production applications as well as the essential elements of the charge, was unprepared for trial, had no sound trial strategy, did not pay attention to the evidence, and did not conduct the trial in a competent manner (paras. 148-251).

45The Hearing Panel also concluded, at para. 254, that “the professional misconduct findings we have made warrant a finding that Mr. Guiste failed to act with integrity and to encourage public confidence in and respect for the administration of justice by disrupting the course of justice.”

F. The Penalty Hearing

(i) Evidence

46The appellant tendered the following evidence at the penalty hearing:

A report from Dr. Saadia Akram-Pall, a psychologist who had conducted 10 counselling sessions with the appellant. She discussed how the appellant’s experiences with anti-Black racism affected the manner in which he communicated with others. She believed that the appellant was genuinely remorseful for his conduct and was confident that he would conduct himself professionally in the future.
A report from Dr. Wendell Nii Laryea Adjetey, a professor of history at McGill University who specialized in the history of the African Diaspora in North America. The report included a discussion about anti-Black racism in Canada generally and in the criminal justice system and the legal profession. He did not meet or interview the appellant.
Numerous letters from lawyers and other individuals who had known the appellant for a long time and who spoke about his commitment to fearless advocacy for his client and the representation of marginalized members of society.
An affidavit from the appellant setting out his personal circumstances, including facts about significant health problems, and his financial situation.

47The appellant had two prior findings of misconduct, one from 2006 for swearing a false affidavit and one from 2011 for incivility. The latter finding resulted in a reprimand and a requirement that the appellant undergo two years of mentoring and write letters of apology to the individuals involved.

(ii) The Hearing Panel’s Reasons

48The Hearing Panel concluded that the appropriate penalty was a three-month suspension (at paras. 95-97):

Looking at Mr. Guiste’s misconduct as a whole, a significant suspension is required to meet the goals of specific and general deterrence; rehabilitation or public restitution; and the maintenance of public confidence in the legal profession. The findings of incivility, incompetence and lack of integrity are serious misconduct that impact the administration of justice and the reputation of the profession as trustworthy and competent in the eyes of the public. We were not satisfied that Mr. Guiste is rehabilitated.

The length of the suspension is mitigated by extenuating circumstances. Mr. Guiste’s constant struggle against institutional anti-Blackness and his exposure to anti-Black racism in his life, his practice and before the courts has impacted his advocacy around unconscious bias and his temperament. He serves a marginalized community that is not well served by the profession in general. Further, we could not conclude he was likely to reoffend.

We conclude a three-month suspension is appropriate.

49The Hearing Panel also ordered that the appellant pay costs to the Law Society in the amount of $225,000 in five equal yearly instalments of $45,000.

G. Appeal to the Appeal Panel

50Before the Appeal Panel, the appellant advanced the same grounds of appeal he advances in this court as well as some additional grounds. The Appeal Panel concluded that the Hearing Panel did not err in the manner suggested and also upheld the decisions as to penalty and costs.

II. ANALYSIS

A. Jurisdiction and Standard of Review

51The appellant appeals to this court pursuant to ss. 49.38 and 49.39(1) of the Law Society Act, R.S.O. 1990, c. L.8 (“LSA”), which allow him to appeal “on any grounds.” The appellate standard of review applies, which means that questions of law are reviewed on a correctness standard while questions of fact are reviewed on a standard of palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at para. 29. For questions of mixed fact and law, the standard is also palpable and overriding error, unless the legal principle is readily extricable, in which case it is reviewed on a correctness standard: Vavilov, at para. 37. Issues of procedural fairness are also reviewed on a correctness standard: Abrametz, at para. 30.

52This court may only intervene with respect to the penalty if the tribunal made an error in principle or the decision clearly unfit or wrong: Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.

53The standard of review that applies to a costs decision is one of considerable deference. A costs award should be set aside on appeal only if the adjudicator made an error in principle or was plainly wrong: Casella v. Ontario (College of Chiropodists), 2024 ONSC 899 (Div. Ct.), at para. 54. This standard of review has also been described as reasonableness in that appellate intervention will be warranted only if there is no line of analysis that could reasonably lead the tribunal from the evidence to the conclusion reached: Moore v. College of Chiropractors of Ontario, 2025 ONSC 6190 (Div. Ct.), at para. 143, citing Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at paras. 24-25. An appellant may argue that a costs decision reflects errors in the assessment of the relevant factors, including errors in principle, and that the quantum is clearly punitive: Moore, at para. 135, as discussed below.

54These reasons focus on the reasons of the Hearing Panel because a review of the Appeal Panel’s decision requires us to conduct our own assessment of the Hearing Panel’s reasons.

B. Consideration of Allegations Not in the Notice of Application

(i) Overview

55The appellant submits that with respect to the Street matter, the Hearing Panel considered and made findings with respect to allegations that were not set out in the Notice of Application containing the allegations against him. He further submits that it can be inferred that any allegations that were not in the Notice of Application were not approved by the Law Society’s Proceedings Authorization Committee (“PAC”), whose authorization is statutorily required before any allegations can be the subject of disciplinary proceedings. As a result, by considering allegations that were not in the Notice, the Hearing Panel committed jurisdictional error in addition to breaching the requirements of procedural fairness.

56Law Society disciplinary hearing procedure is governed by the LSA and Law Society By-Law 11. Where the Law Society alleges that a member has contravened s. 33 of the LSA, which prohibits professional misconduct or conduct unbecoming a licensee, s. 34(1) provides that it can apply to the Tribunal for a finding to that effect only if authorized to do so by the PAC. Section 51(2) of By-Law 11 provides that the PAC can only give such authorization if it is satisfied that there are reasonable grounds for believing that the licensee has contravened s. 33 of the LSA. This is, in effect, a screening process, as any application by the Law Society to the Tribunal for a finding of misconduct must first be screened by the PAC.

(ii) The Notice of Application and the Hearing Panel’s Findings

57In the Notice of Application, the first allegation with respect to the Street matter was that the appellant

… failed to treat the tribunal with courtesy and respect when, in the course of representing an accused at trial in the criminal matter of R. v. Street on various dates between March 2013 and April 2014, the Respondent made discourteous and disrespectful comments to the trial judge on or about March 22, 2013 and May 29, 2013 which included the following:

a) “Well, your Honour, I think you should give some thought to what you are doing, because you’re trying to derail me.”

b) “Your Honour, you’ve got to – you’ve got to do your job now. She – he asked that, and she said, five times. I mean, come on.”

c) “Your Honour, I would’ve thought that you would’ve intervened, as the trial judge, but what’s the purpose of this?”

d) “I don’t think you’re listening to me very carefully, so I’m going to be very precise.”

The second allegation was that the appellant

… failed to be courteous and civil in his dealings with opposing counsel in R. v. Street when the Respondent made discourteous and uncivil comments about Crown Counsel on or about March 22, 2013 which included the following:

a) “Your Honour, my friend has raised an issue of privilege with respect to his attempt to muzzle [the witness]”.

b) “Ms. [the witness], [the Assistant Crown Attorney] wants to make the trial longer, so just be calm, and let him blab.”

c) “Your Honour, my friend’s being very disrespectful to this witness, and I don’t know if it’s on account of her race, or what it is, but can you please caution him to her finish her narrative? He just keeps interrupting, and bellowing like he’s some big, bad-ass dog or something.”

58The Hearing Panel made findings of misconduct with respect to other things said by the appellant on March 22, 2013, which were not mentioned in the Notice of Application. These included the following:

the comment that “the police and the authorities are more interested in making a criminal out of Mr. Street….” (para. 82);
various comments about Crown counsel’s objection to evidence about the complainant’s conversation with him, such as “Nobody wants to hear her version because it is not consistent with their theory of criminalizing an African-Canadian man” (para. 82);
the suggestion that Crown counsel would never admit to having lied (para. 82);
the comment that “many a judge is there to assist the Crown” (para. 59).

(iii) Authorities Relied on by the Appellant

59The appellant relies primarily on two authorities in support of his submissions. The first is Hryciuk v. Ontario (Lieutenant Governor) (1996), 1996 CanLII 4013 (ON CA), 31 O.R. (3d) 1 (C.A.), a case involving a inquiry into whether there should be a recommendation that a provincially-appointed judge be removed from office. The procedure at the time was that a public inquiry into a complaint could only be held if the Ontario Judicial Council recommended it after investigating the complaint, a screening process similar to that used in the Law Society disciplinary context.

60In Hryciuk, the Council had recommended that an inquiry be held into two complaints against the judge it had investigated, one relating to an allegation that he had kissed an Assistant Crown Attorney without her consent on a specific date in 1992, and another relating to an allegation that he had made remarks of a sexual nature to another Assistant Crown Attorney in 1988. During the inquiry, however, evidence was led about three other complaints relating to an alleged incident involving a judicial colleague and inappropriate conduct in relation to a court reporter in 1993. The Court of Appeal quashed the Inquiry Judge’s removal recommendation (at paras. 40-41):

The Inquiry Judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge Hryciuk should be removed, but into whether he should be removed because of those complaints referred to her by the Judicial Council, namely the two complaints referred to in the Order-in-Council. By hearing three additional complaints not so referred, she exceeded her jurisdiction.

The discipline process under the Courts of Justice Act is mandatory. By requiring that there be two stages of review, the Legislature has balanced the public and judicial interests in a way which attempts to protect both and compromise neither. The fact that the subject of the process is a judge ought not, and does not, yield particular procedural advantages to that judge. But neither should his or her judicial office be a reason to deny procedural safeguards provided by law.

61The second decision is Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 10566 (ON CA), 65 O.R. (3d) 146 (C.A.). In that case, the Complaints Committee of the College of Physicians and Surgeons of Ontario had referred an allegation of misconduct to the Discipline Committee for a hearing in accordance with its screening process. The allegation was that the physician had had a sexual relationship with a specific patient and had failed to maintain the standard of practice of the profession in relation to her. After the discipline hearing began, the College received another complaint from a different patient, which the Complaints Committee also referred to the Discipline Committee. However, instead of initiating new proceedings in relation to the second complaint, the College Registrar amended the Notice of Hearing for the proceedings that had already commenced by adding the new complaint. The Court of Appeal concluded that this was improper (at para. 29):

I accept the submission of counsel for Dr. Henderson that what was involved in this case was joinder rather than the amendment of an existing Notice of Hearing. The complaints of Ms. S. and Ms. H., and the allegations of professional misconduct and incompetence derived from them, involved distinct and separate offences. The joinder of the allegations of Ms. H. with those of Ms. S. involved much more than the amendment of the original Notice of Hearing.

(iv) Procedural Fairness

62I am not persuaded that the appellant was denied procedural fairness. It is well established that “a notice of hearing in a discipline case is not to be construed in the same way as a criminal indictment”: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), 285 O.A.C. 218, at para. 50.

63In Brooks v. Ontario (Racing Commission), 2016 ONSC 1136, 347 O.A.C. 200, at paras. 37-38 (aff’d 2017 ONCA 833, 33 Admin. L.R. (6th) 316, at para. 13), this court adopted the standard for the sufficiency of particulars in the administrative context set out in Violette v. New Brunswick Dental Society, 2004 NBCA 1, 267 N.B.R. (2d) 205, at para. 43, which requires an affirmative answer to the following three questions:

Does the document provide sufficient particulars “to enable a member to identify, by implication, that which is not explicit”?
Does the document include enough facts “to enable the member to tie the allegation of wrongdoing to his or her conduct”?
Is there a sufficient connection between the alleged wrongdoing in the document and the eventual findings of the administrative tribunal?

In my view, the Notice in this case meets that standard. There was no procedural unfairness.

64The allegations in the Notice of Application were general allegations that the appellant had failed to treat the tribunal with courtesy and respect and had failed to be courteous and civil with opposing counsel during the Street trial. The Notice stated that this alleged misconduct “included the following” and then listed specific examples of things the appellant had said. Nothing in the Notice or the way in which the proceedings before the Hearing Panel unfolded support the contention that the allegations were restricted to the specific examples listed in the Notice. It would have been apparent to the appellant that his conduct throughout the trial was in issue.

65Unlike in Hryciuk and Henderson, where there were new allegations based on entirely different events involving different complainants, the specific factual findings of the Hearing Panel which were not particularized in the Notice were simply part of the general misconduct the appellant was alleged to have engaged in. All of them were of the same nature, in relation to the same individuals (the trial judge and Crown counsel), occurred during the same proceeding and, in fact, on the same day as those particularized in the Notice of Application.

(v) Jurisdiction

66Law Society tribunal caselaw holds that that PAC authorization memoranda are privileged, a conclusion which the appellant has not challenged in these proceedings: Law Society of Ontario v. McDonald, 2025 ONLSTA 10, at paras. 37-38. Rather, he submits that it can be inferred that any specific allegations not mentioned in the Notice must not have been authorized by the PAC. However, as I have explained, the Notice alleged misconduct that went beyond the specific examples in the Notice. There was no jurisdictional impediment to proceeding with a hearing as long as the PAC authorized the Law Society to apply to the Tribunal for a finding with respect to the appellant’s general conduct during the Street trial.

C. Application of the Factors in Groia v. Law Society of Upper Canada

(i) Overview

67The appellant submits that with respect to both the Street and Ram matters, the Hearing Panel erred by failing to consider all of the relevant context and thereby applied the wrong legal test in determining whether incivility amounting to professional misconduct had been established. He submits that this raises a question of law to be determined on a correctness standard and the Appeal Panel erred by applying a standard of palpable and overriding error.

68The parties agree that the correct approach to determining issues of incivility is that set out in Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772. As was explained in that case, at paras. 77-80, the approach must be “both flexible and precise” so that it can be applied in the wide variety of circumstances in which lawyers conduct themselves while at the same time provide a workable and reasonably ascertainable standard on which lawyers can rely to guide their behaviour. The court adopted a non-exhaustive list of relevant factors, which include (1) what the lawyer said; (2) the manner and frequency of the lawyer’s behaviour; and (3) the trial judge’s reaction.

69The appellant submits that the Hearing Panel made a number of errors, which he submits demonstrates that it erred in law by failing to properly apply the principles in Groia. In particular, he submits that the Hearing Panel erred by:

concluding that the appellant had attacked the integrity of the trial judge or Crown counsel;
finding a lack of good faith in the absence of an adverse credibility finding in relation to the appellant’s testimony;
finding a lack of reasonable basis for the appellant’s conduct by failing to recognize legal errors committed by the trial judge in Street;
failing to apply the principle of de minimis non curat lex to the allegations involving the appellant’s cross-examination of the complainant in Ram;
failing to consider the trial judges’ responses to the appellant’s actions.

(ii) Balancing Civility With Resolute Advocacy

(a) Categories of Incivility

70A central concern in Groia, and one which permeates this case, is the need to balance a lawyer’s duty to be civil with the duty of resolute and fearless advocacy: Groia, at paras. 70-74. This latter duty is not only one of the primary functions of a lawyer, in criminal cases such as those in which the appellant was involved, it “extends beyond ethical obligations into the realm of constitutional imperatives”: Groia, at para. 75. However, these conflicting duties can be balanced provided that the concept of incivility is correctly defined and circumscribed.

71The term “incivility” can be applied to a broad range of conduct. In Groia, at para. 2, the court referred to “belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct” which, while not an exhaustive definition, likely captures most incivility. This type of conduct generally falls into two categories: offensive communication and baseless allegations of impropriety.

72The first category relates to conduct which attracts descriptions such as “belligerent behaviour” and “disruptive and discourteous conduct.” It usually refers to how a lawyer communicates with counsel, the court and others, for example where a lawyer raises his or her voice, interrupts, uses profanity or engages in vitriol or undue sarcasm. The concern is not with what the lawyer says, but “how they choose to do so”: Rappaport v. Law Society of Ontario, 2024 ONLSTA 13, at para. 35, aff’d 2025 ONSC 431 (Div. Ct.).

73The second category relates to unfounded attacks on the integrity of other counsel, judges or others involved in the justice system. In such cases, it is what the lawyer says, rather than how he or she says it, that matters. The two types of incivility may occur together, but this is not always the case. A baseless allegation of impropriety may be made politely.

74Offensive communication incivility will rarely, if ever, raise issues of conflicting duties. Resolute advocacy does not require, and is in fact inconsistent with, this type of behaviour as it can lead triers of fact to view the client’s case unfavourably and will prevent the rational resolution of disputes: Groia, at para. 54.

75Baseless accusation incivility may pose greater difficulties. Improper conduct by counsel, judges and others, while rare, does unfortunately occur. When it does and adversely affects a client, a lawyer has a duty to raise the issue and must be able to do so without fear of prosecution for professional misconduct. This is particularly true in the criminal law context, as explained in Groia, at para. 75:

… [D]efence lawyers advancing the accused’s right to make full answer and defence “are frequently required to criticize the way state actors do their jobs”: Québec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478, at para. 32; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 64-66. These criticisms range from routine Charter applications -- alleging, for example, an unconstitutional search, detention, or arrest -- to serious allegations of prosecutorial misconduct. Defence lawyers must have sufficient latitude to advance their clients’ right to make full answer and defence by raising arguments about the propriety of state actors’ conduct without fear of reprisal.

(b) Resolute Advocacy and Issues Respecting Racism

76The concern raised in Groia is especially pronounced in cases involving issues of racism and racial discrimination in the justice system. While suggestions of systemic racism in the justice system were once often met with scepticism or indignant denial, that time has passed and its existence is now an undeniable reality, as was recognized by the Court of Appeal in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 685, at para. 1:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v. Theriault, 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. [refused, [2021] S.C.C.A. No. 362]; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased.

The duty to acknowledge, confront and mitigate racism falls on all criminal justice system actors, and it is undoubtedly part of a lawyer’s duty of resolute advocacy to raise the issue when doing so is in the best interests of his or her client.

77Special care may be required when balancing a lawyer’s duty of resolute advocacy with the duty of civility in this context. Most people rightly view racist beliefs and attitudes with moral disapprobation and will therefore take great exception to being accused of having such beliefs and attitudes. However, it is now well recognized that biases can be unconscious and many people who hold such beliefs and attitudes are unaware that they do so: R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193, at paras. 49, 53. Individuals may take great offence when counsel raise issues of racism, even when they do so legitimately and with a proper basis.

78This is precisely what occurred in R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.). In that case, counsel for the accused alleged in the course of a s. 9 Charter application that his client, a Black man, had been stopped by the police as a result of racial profiling. While there was an evidentiary basis for the application, as the Court of Appeal concluded, at trial the argument was met with what the Court of Appeal characterized as “judicial resistance” by the trial judge, who characterized it as “really quite nasty, malicious, potentially, accusations based on … nothing” and who, after dismissing the application, suggested that the accused should apologize to the police: Brown, at paras. 60, 81, 98.

79For this reason, the following caution in Groia, at para. 76, is of particular importance where an allegation of incivility is made in relation to a lawyer who has raised issues of racism:

Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client's cause.

(c) The Lack of Reasonable Basis Requirement

80As discussed in Groia, at paras. 81-97, there are two main components to a finding of incivility based on allegations of impropriety: (1) a lack of reasonable basis for the allegation; and (2) a lack of a good faith basis for the allegation. Both can play an important role as safeguards in ensuring that there is a sufficiently high threshold to be met before it can be concluded that a lawyer has crossed the line.

81As noted in Groia, at para. 88, “the reasonable basis requirement is not an exacting standard.” Allegations of impropriety that have weak evidentiary support or are merely unlikely to succeed are insufficient to ground a finding of incivility. The following description of when such allegations are appropriate from R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 88, is helpful in this regard:

The defence has the right to make allegations of abuse of process and prosecutorial misconduct, but only where those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings. [Emphasis added].

82Two points must be borne in mind when considering whether there is a reasonable basis for an allegation of impropriety based on racist motivations. The first is that establishing that a state actor was improperly motivated by racism, and particularly unconscious racism, is often difficult and will rarely be achieved by relying on direct evidence: Brown, at paras. 45-46.

83The second is that a decision by a state actor can be legitimately raised by a lawyer as long as race or racial stereotypes played some role and the decision need not be motivated solely or even mainly by race-based considerations: R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at paras. 62-65.

84Provided that there is some foundation for an allegation and some possibility that the allegation will lead to a remedy, the making of an allegation cannot amount to incivility unless it is done in an uncivil manner. There is no restriction on a lawyer’s duty of resolute advocacy in these circumstances. Incivility may only be found if there is no foundation for the allegation and no possibility that it will lead to a remedy. Where baseless accusation incivility is defined in this way, there will be no effect on the duty of resolute advocacy as it is never in a client’s interest for a lawyer to make allegations that cannot result in a remedy.

(d) The Lack of Good Faith Requirement

85The second safeguard is the need to consider whether the lawyer made the allegation of impropriety in bad faith or whether it was based on a sincerely held belief, even if mistaken. The court in Groia concluded, at para. 84, that it is open to a Law Society to conclude that civility requires the presence of both good faith and a reasonable basis because of concerns about “irresponsible counsel with sincere but nevertheless unsupportable suspicions.” While this suggests that a finding of incivility can be made where there is either a lack of reasonable basis or a finding of bad faith, the court made it clear that incivility is not made out where the lack of reasonable basis is based on a lawyer’s good faith mistake about the law: Groia, at paras. 90-91.

86With this framework in mind, I turn to the appellant’s submission that the Hearing Panel failed to properly apply the principles in Groia and that the Appeal Panel erred by treating this as a question of fact rather than a question of law.

(iii) Did the Hearing Panel Err in Concluding That the Appellant Had Attacked the Integrity of Others?

(a) The Appellant’s Submission

87The appellant submits that the Hearing Panel erroneously inferred that the appellant had attacked the integrity of the trial judge and Crown counsel in the Street trial and Crown counsel in the Ram trial. Based on the words used by the appellant and the context in which he used them, the Hearing Panel inferred that he had done so. These were factual findings entitled to deference.

(b) The Trial Judge in R. v. Street

88The Hearing Panel concluded that the appellant had impugned the trial judge’s integrity in the Street trial based on several comments, including stating that “many a judge is there to assist the Crown,” telling the judge not to “try to use this as an excuse or a justification” in response to being told that he should have brought an abuse of process application, suggesting that she was trying to “pre-empt” or “derail” him, as well as telling her “you’ve got to do your job now” and “I don’t think you’re listening to me very carefully.” Based on these comments, it was open to the Hearing Panel to conclude that the appellant “attacked the judge’s impartiality, integrity and competence.”

(c) Crown Counsel in R. v. Street

89The Hearing Panel concluded that the appellant had attacked the integrity of Crown counsel in the Street trial based on several comments he made, including saying that “the police and the authorities are more interested in making a criminal out of Mr. Street in the absence of evidence,” suggesting Crown counsel decided not to call Ms. T. as a witness because “[n]obody wants to hear her version, because it’s not consistent with their theory of criminalizing an African-Canadian man,” suggesting that the decision not to call Ms. T. was an “attempt to muzzle” her, suggesting that Crown counsel had dismissed Ms. T.’s concerns in a manner that “is repugnant for … an agent of the Ministry of the Attorney General….,” alleging that Crown counsel was being disrespectful to Ms. T, and adding “I don’t know if it’s on account of her race or what it is,” and suggesting that Crown counsel “keeps interrupting and bellowing like he’s some big, bad-ass dog or something.”

90Based on these comments, it was open to the Hearing Panel to conclude that the appellant had alleged that Crown counsel had made the decision not to call Ms. T. as a witness for improper reasons with racial motivations. Indeed, while his evidence before the Hearing Panel was not entirely consistent on this issue, the appellant acknowledged that it was his belief that Crown counsel had been motivated by unconscious racism. The Hearing Panel was entitled to rely on this evidence when making findings about the appellant’s comments during the trial and what they meant. Doing so was not “bootstrapping” the appellant’s testimony at the hearing into an allegation at trial that was not made, as suggested in the appellant’s factum.

(d) Crown Counsel in R. v. Ram

91The Hearing Panel concluded that the appellant had attacked the integrity of Crown counsel in the Ram trial by alleging that she had tampered with the disclosure disk based on the comments reproduced earlier at para. 28. It was open to the Hearing Panel to do so.

(iv) Did the Hearing Panel Err in Finding a Lack of Good Faith?

(a) The Appellant’s Submission

92The appellant testified that he sincerely believed that he had a reasonable basis for making the comments that he did. He submits that as this is an entirely subjective issue, it was not open to the Hearing Panel to make a finding that he had not acted in good faith absent an adverse credibility finding, which was not made. I agree that the Hearing Panel could not find a lack of good faith unless it rejected the appellant’s evidence. However, it clearly did so.

(b) Criticism of the Trial Judge’s Refusal to Allow Evidence of the Witness’s Conversation With Crown Counsel

93The Hearing Panel made several factual findings with respect to the issue of good faith. Most of the appellant’s criticisms of the trial judge were in relation to her refusal to allow him to adduce evidence of Crown counsel’s conversation with Ms. T. absent an abuse of process application. On this issue, the Hearing Panel found as follows (at para. 65):

We do not accept that Mr. Guiste had a good faith belief that he could lead evidence of the conversation without bringing an abuse of process motion. His professed belief is not reasonable in the context of his own evidence or the circumstances at the time. Mr. Guiste did not testify that he believed, or had any basis to believe, that he could lead the evidence of the conversation without having brought a stay motion.

94The Hearing Panel went on to conclude that the appellant’s comments to the trial judge were criticisms of her that were “disrespectful, without any reasonable basis and were not made in good faith” (at para. 73). It was open to the Hearing Panel to do so.

(c) Questioning the Crown’s Motivation for Continuing the Prosecution of Mr. Street

95In his evidence before the Hearing Panel, the appellant took the position that he had a basis for alleging that the continued prosecution of Mr. Street was racially motivated based on the approach set out in Brown. That case involved a claim that the defendant’s right against arbitrary detention guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms had been infringed because he had been detained based on racial profiling by the police. The court approved the following approach for considering claims of this nature (at para. 45):

The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under s. 9 of the Charter).

96The approach in Brown is not restricted to arbitrary detention claims and similar reasoning can be applied in other contexts: Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at para. 128. However, the fact that an accused is Black does not, by itself, support an inference that state action against him was improperly racially motivated. The approach in Brown requires that there be circumstances which “correspond to the phenomenon” of improper motivation based on race, which is sometimes referred to as the “correspondence test”: D.M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359. Some examples of corresponding phenomena in the racial profiling context are evidence that the police looked into a car before stopping it, evidence that the police made a note of the defendant’s race before detaining him, evidence undermining the stated reason for the detention, and the fact that the defendant was driving an expensive car: R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at paras. 62-64; Dudhi, at para. 79; Brown, at para. 46.

97The appellant’s position was that the Crown’s decision to continue the prosecution despite Ms. T.’s recantation was unprecedented and therefore supported an inference that the decision was racially motivated. The Hearing Panel did not accept this submission for the following reasons: (at paras. 93-94):

Mr. Rinaldi testified and, we accept, that he continued to prosecute Mr. Street because he believed he had reasonable and probable grounds to continue. He had Ms. S’s evidence that she saw the assault on her sister and was assaulted herself; recordings of the 9-1-1 calls from two members of the T/‌S household; and Ms. T’s signed statement with which to test her credibility if she recanted as he expected. There is no evidence that his decision to continue to prosecute was improper or racially motivated.

Mr. Guiste knew these facts and that prosecutors have discretion in making these decisions. His only rationale for his position, that he had never seen a Crown continue without the victim’s evidence, is inconsistent with Mr. Rinaldi’s evidence that about 40% of spouses who allege assault later recant. Mr. Guiste did not offer any evidence to refute this, nor did he point to any evidence to support his conclusion. The continued prosecution of Mr. Street does not provide Mr. Guiste with reasonable grounds to allege racial motivation. Further, it does not provide credible evidence to support him having a good faith belief that Mr. Rinaldi was racially or improperly motivated.

98I have some difficulty with the conclusion that the appellant’s evidence was “inconsistent” with Mr. Rinaldi’s. The fact that 40% of spouses recant is not necessarily inconsistent with the appellant’s testimony that he had never seen a prosecution continued after a recantation. Whether a complainant recants and whether the Crown continues a prosecution after a recantation are separate matters.

99However, it is well established that the Crown has no duty to call a complainant as a witness, although a decision not to do so is made at its own peril: R. v. Cook, [1997] 1 S.C.R. 1113, at paras. 48-52. It was open to the Hearing Panel to conclude that the appellant, an experienced lawyer, knew that the Crown had a discretion with respect to which witnesses to call and to conclude that he had no good faith or reasonable basis for concluding that the continued prosecution was racially motivated. In these circumstances, even if there was any error in the Hearing Panel’s findings, such error was neither palpable nor overriding.

(d) Criticism of the Crown’s Cross-Examination of the Witness

100The Hearing Panel also concluded that the appellant did not have a good faith belief that Crown counsel’s cross-examination of Ms. T. was abusive and improper (at paras. 101-102):

We find that Mr. Guiste did not have a good faith belief that Mr. Rinaldi’s cross-examination was disrespectful and/or racially motivated. Mr. Guiste may not have liked the challenge to his witness’ credibility, but as an experienced trial counsel, he knew that vigorous cross-examination of a witnesses’ credibility is an integral part of litigation.

Further, if Mr. Rinaldi had been abusing the witness as Mr. Guiste maintained, the transcript would have reflected abusive comments and Mr. Guiste would have been objecting on that basis throughout.

This was a factual finding that was open to the Hearing Panel.

(e) Suggestion of Disk Tampering by the Crown

101With respect to the appellant’s comments about the disclosure disk in the Ram trial, he acknowledged in his testimony before the Hearing Panel that he had no evidence that Crown counsel had tampered with the disk. He therefore could not have had a good faith or reasonable basis for making the allegation.

102It is clear from the Hearing Panel’s reasons that it did make adverse findings of credibility against the appellant on the issue of good faith. I agree with the Appeal Panel that these were findings of fact entitled to deference and that there was no palpable and overriding error.

(v) Did the Hearing Panel Err by Failing to Consider Errors by the Trial Judge in R. v. Street?

103As noted earlier, many of the appellant’s impugned comments during the Street trial related to the trial judge’s refusal to allow him to adduce evidence of Crown counsel’s conversation with Ms. T. unless he brought an abuse of process application. The appellant submits that the Hearing Panel erred by assuming that the trial judge’s ruling on this issue was legally correct, which led it to erroneously conclude that there was no reasonable basis for his comments. The Appeal Panel did not deal with this issue in its reasons and it is not clear whether it was raised. However, the respondent has not made any objection to this court considering the issue.

104The appellant’s argument, as I understand it, is as follows. While it is generally open to a party to decide what witnesses to call, in some circumstances an adverse inference can be drawn against the Crown for failing to call a witness if the decision was made for an oblique motive. Ms. T.’s evidence of her conversation with Crown counsel supports the inference that the decision not to call her was made for an oblique motive, including an inference that the prosecution was racially motivated. The conversation was therefore relevant and admissible even if there was no abuse of process application.

105The first proposition, that in some circumstances an adverse inference can be drawn from the Crown’s failure to call a witness, is undoubtedly correct, although the circumstances in which such an inference would be appropriate are rare: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 25-28; R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.), at p. 68; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at para. 162; Cook, at para. 41. As explained in Jolivet, at para. 28, the adverse inference that can be drawn in such circumstances is that the failure to call the witness amounts “to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.” The inference, where it is available, is “rooted in the soil of ordinary logic and experience”: Ellis, at para. 48.

106Courts have long been cautious about drawing inferences of this nature because there may be many reasons why counsel, in exercising their judgment, choose not to call a particular witness and “our Courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case”: Zehr, at pp. 68-69; Jolivet, at para. 28. Furthermore, given the Crown’s disclosure obligations, defence counsel will be aware of the witness’s anticipated evidence and may call the witness if he or she concludes that the witness’s evidence will be helpful, thereby obviating the need for the adverse inference: Cook, at para. 36. This is, in fact, what occurred in this case.

107While I accept that in some circumstances an adverse inference can be drawn from the Crown’s failure to call a witness, there is no clear authority supporting the appellant’s submission that this means that evidence about Crown counsel’s decision-making is therefore relevant and admissible at trial absent an abuse of process application. Indeed, the judgment in Cook suggests otherwise (at para. 58):

A second possibility is where the Crown intentionally abuses its discretion in some manner by failing to call the witness. While this has traditionally been referred to as being an “oblique motive”, it would seem to have much in common with the doctrine of abuse of process. Indeed, given that the finding of an “oblique motive” by its very name implies improper conduct on the part of the Crown, I feel it is unlikely that such a finding could arise without there being a legitimate claim of an abuse of process.

D. Admissibility of Expert Evidence

(i) Overview

118The appellant submits that the Hearing Panel erred in admitting the evidence of Mr. Bergman on the basis that the witness lacked impartiality as well as on the basis that the prejudicial effect of the evidence outweighed its probative value.⁵ He further submits that even if these concerns did not justify exclusion of the evidence, the Hearing Panel erred by failing to consider them in determining what weight to attribute to it. Similar submissions were made to and rejected by the Appeal Panel.

(ii) Applicable Legal Principles

119The two-step analytical approach to determining the admissibility of expert evidence is not in dispute and was set out in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.) [“Abbey #1], at paras. 76-85, and adopted in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 23. First, the party seeking to have the evidence admitted must establish the threshold requirements of admissibility set out in R. v. Mohan, [1994] 2 S.C.R. 9: relevance, necessity, absence of an exclusionary rule and a properly qualified expert.

120At the second step, sometimes referred to as the “gatekeeping step,” the court or tribunal must balance the potential risks and benefits of admitting the evidence. This will involve a number of considerations, including the subject matter of the evidence as well as the expert’s methodology, expertise and impartiality: Abbey #1, at para. 87; White Burgess, at para. 24. The primary concern is with respect to the reliability of the evidence, which is “central to its probative value and thus to the benefits of admitting it”: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 [“Abbey #2”], at para. 54. The second step involves an element of judicial discretion and intrudes to some extent into matters that are ordinarily only in the purview of the trier of fact: Abbey #1, at paras. 85, 89.

121Concerns about a proposed expert witness’s impartiality can be relevant at both stages. A proposed expert witness who is unable or unwilling to fulfill his or her duty of impartiality is not a “properly qualified expert,” so the evidence is excluded at the first stage: White Burgess, at para. 53. However, exclusion on the basis of bias at the first stage should only occur in very clear cases and will therefore be rare: White Burgess, at para. 45; Abbey #2, at para. 55. Concerns about impartiality and bias also relate to the reliability of the evidence and must form part of the cost-benefit analysis at the second stage: White Burgess, at para. 54.

(iii) Impartiality

(a) The Mentoring Relationship

122The appellant submits that Mr. Bergman’s evidence should have been excluded based on the potential for a lack of impartiality on two bases. The first was that the appellant had been in a mentoring relationship in the past with members of Mr. Bergman’s firm (but not Mr. Bergman himself). The second was that Mr. Bergman’s partner, Mark Sandler, had a longstanding relationship with the Law Society as a bencher, adjudicator and consultant.

123The appellant deposed in an affidavit filed on the motion to admit Mr. Bergman’s evidence that after his call to the bar, he decided to practice criminal law and felt that he could benefit from some mentoring in this area. He contacted the late Austin Cooper, Q.C., of the same firm that Mr. Bergman later became a member of, who arranged to have the appellant accompany him and his partner, Peter West (now West J. of the Ontario Court of Justice) on three trials they were involved in. For several years after this, the appellant often contacted Mr. Cooper or Mr. West for advice. When they were not available, he spoke to their partner, Andrea Tuck-Jackson (now Tuck-Jackson J. of the Ontario Court of Justice).

124I agree with the Hearing Panel that the appellant’s mentorship relationship with members of Mr. Bergman’s firm was not a solicitor-client relationship giving rise to a conflict of interest. The test for determining whether there is a disqualifying conflict of interest arising out of a solicitor-client relationship is well-established and involves a consideration of two questions: (1) did the lawyer said to be in a conflict of interest receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?: McDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at para. 45; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 24. With respect to the first question, there is no evidence that the appellant imparted confidential information to Mr. Cooper, Mr. West or Ms. Tuck-Jackson. With respect to the second question, even if he had, there is no evidence that any of the former members of the firm relayed such information to Mr. Bergman such that there was a risk that it would be used to prejudice the appellant.

125The appellant submits that Mr. Bergman’s firm owed him a duty of loyalty and admitting his testimony would have a chilling effect on lawyers’ mentorship relationships. I accept that one reason for the existence of fiduciary duties or duties of loyalty is to protect and encourage certain types of relationships of importance and that a mentorship relationship may fall into this category. However, I do not agree that allowing Mr. Bergman to testify would have had any chilling effect. As the Hearing Panel observed, Mr. West and Ms. Tuck-Jackson were appointed to the Ontario Court of Justice in 2006 and 2008, respectively, after which the only member of the firm to have any relationship with the appellant was Mr. Cooper, until his death in 2013. By the time Mr. Bergman testified, there had been no connection between the appellant and the firm for many years.

(b) Mr. Sandler’s Association With the Law Society

126Mr. Bergman’s partner, Mr. Sandler, had been a bencher of the Law Society and had served as an adjudicator on Law Society tribunals. He was no longer a bencher at the time of the appellant’s hearing, but still acted as a consultant to the Law Society, although the manner and extent to which he did so is unclear. There is no evidence that he had any involvement in the investigation or prosecution of the appellant.

127Mr. Bergman testified that Mr. Sandler’s Law Society work was behind a privacy wall and he never discussed the appellant’s matter with him. I agree with the Appeal Panel that the relationship with Mr. Sandler did not raise any realistic concern that Mr. Bergman could not be impartial.

(iv) Probative Value and Prejudicial Effect

(a) The Appellant’s Submissions

128The appellant submits that the prejudicial effect of Mr. Bergman’s evidence outweighs its probative value on two bases. The first relates to the alleged lack of impartiality discussed earlier. For the reasons given, there were no realistic impartiality concerns that would affect the reliability of the evidence.

129The second basis on which the appellant submits that the unreliability of the evidence warrants its exclusion is based on challenges to Mr. Bergman’s opinion in three areas: (1) the application for a stay of proceedings; (2) the third party records application; and (3) the re-opening of the defence case. The appellant submits that Mr. Bergman’s opinions were wrong, which demonstrates that his evidence was so unreliable that it ought to have been excluded. Before I consider these, it is necessary to make a few comments about the expert evidence in this case.

(b) Expert Evidence on Lawyers’ Standards of Competence

130It is well established that expert evidence on domestic law is rarely, if ever admissible: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 40; Assn. of Charter Certified Accountants v. Canadian Institute of Chartered Accountants, 2016 FC 1076, 149 C.P.R. (4th) 272, at para. 29-34. Mr. Bergman was not asked to provide an opinion on matters of law, but about the standards of competence in the practice of criminal law, an area in which expert evidence is generally admissible: Gayle v. Cambridge Mercantile Corp., 2025 ONCA 612, at para. 10.

131It will usually be difficult if not impossible for an expert to provide an opinion on lawyers’ standards of competence without discussing questions of law, as knowledge of the law is part of what is expected of a reasonably competent lawyer. Because of this, “the line between admissible and inadmissible evidence often blurs” in such cases: Assn. of Chartered Certified Accountants, at para. 31. However, the distinction is an important one, as it is the admissibility of Mr. Bregman’s opinion on standards of practice, not questions of law, that is at issue. His knowledge of the latter subject is only relevant insofar as it informs an evaluation of his opinion of the former.

(c) Mr. Bergman’s Opinions

132The appellant submits that Mr. Bergman was incorrect that the inadequacy of a police investigation could not amount to an abuse of process. For the reasons explained earlier, if Mr. Bergman had provided an opinion on whether as a matter of law, an incomplete investigation could ever constitute an abuse of process, this would have been irrelevant and inadmissible. However, he gave no such opinion. What he said was that the inadequacy of this investigation could not be found to be an abuse of process, and the application brought by the appellant at the trial had no prospect of success and would not have been brought by a reasonably competent criminal defence lawyer. I see no basis for concluding that this opinion was wrong, let alone that it provided a basis for concluding that Mr. Bergman’s evidence was so unreliable that it ought to have been excluded.

133Mr. Bergman was critical of how the appellant handled the third-party records application, but acknowledged that the appellant’s understanding of the law was correct and that the domestic violence policy was not a third-party record.⁶ The appellant testified that he disagreed with Mr. Bergman and believed that he had handled the application appropriately. It was open to the Hearing Panel to assess the evidence of both witnesses and make findings of fact. Nothing in Mr. Bergman’s evidence raises reliability concerns related to admissibility.

134It was Mr. Bergman’s opinion that the fact that the appellant “inadvertently” closed the defence case in error and the manner in which he did so fell below the standard of a reasonably competent criminal defence lawyer. The appellant submits that Mr. Bergman failed to recognize caselaw which permits the reopening of the defence case, even where it was closed in error. It is true that a trial judge does have a discretion to permit re-opening and that Mr. Bergman did not mention this in his report: R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.), at pp. 197-198. However, this does not mean that Mr. Bergman’s opinion that “inadvertently” closing the case falls beyond the standard of competence is unreliable.

(d) Conclusion

135I am not persuaded that Mr. Bergman’s evidence contained any errors that should have led the Hearing Panel to conclude that his evidence was so unreliable that its probative value was outweighed by its prejudicial effect. The Hearing Panel made no error in admitting the evidence.

E. Appeal of the Penalty Decision

(i) Overview

136The appellant alleges that in determining the appropriate penalty, the Hearing Panel erred by:

(1) failing to correctly identify the appropriate range of penalty in incivility cases;

(2) failing to give adequate weight to the evidence of Dr. Akram-Pall;

(3) requiring a causal connection between the applicant’s experiences of racism and his conduct;

(4) relying on the manner in which the appellant conducted the hearing to increase the penalty;

(5) failing to treat the appellant’s conduct as having occurred “in the heat of the moment”;

(6) making inconsistent findings respecting rehabilitation and the likelihood of recurrence;

The appellant further submits that the Appeal Panel erred by failing to find these errors or give them any effect.

(ii) Failure to Correctly Identify the Range

137The appellant submits that prior Law Society Appeal Panel decisions demonstrate that the range of penalty for incivility is a reprimand up to suspension for one month and the Hearing Panel erred by relying on Hearing Panel cases in which higher penalties were imposed.

138There is no reason why a Hearing Panel should only rely on Appeal Panel decisions when determining an appropriate penalty. It is entirely appropriate for a Hearing Panel to consider the penalties that were imposed in similar cases as long as it recognizes that no two cases are exactly alike and the penalty in each case must be decided based on that case’s unique circumstances.

139In any event, the penalty imposed in this case was not only in relation to incivility, but also for the finding of failure to serve a client, which is arguably a more serious form of misconduct.

(iii) Failure to Give Adequate Weight to Dr. Akram-Pall’s Report

140The Hearing Panel concluded that Dr. Akram-Pall’s report was “helpful to the extent it provides a summary of Mr. Guiste’s ten therapy sessions and what he reported learning from them,” but concluded that her conclusions were undermined because of the short course of therapy, the appellant’s delay in seeking therapy, and the fact that Dr. Akram-Pall was unaware of the appellant’s prior misconduct findings (at para. 20). It was for the Hearing Panel to determine what weight to give this evidence and the manner in which it did so does not reflect any error.

(iv) Requiring a Causal Connection Between Experiences of Racism and Conduct

141The Hearing Panel accepted Professor Adjetey’s opinion that the appellant’s exposure to anti-Black racism in his work and his life “influenced his temperament,” but did not accept those aspects of his opinion that were inconsistent with its own findings (at para. 20). The Hearing Panel concluded, however, that the appellant’s background and experiences do not explain his refusal to follow the court’s directions, his unfounded allegations against Crown counsel, his lack of competence or his lack of integrity.

142In Morris, at paras. 96-97, the court made it clear in the sentencing context that a causal connection does not need to be established before experiences of anti-Black racism can be considered as mitigating personal responsibility, but held that there had to be “some connection between the overt and systemic racism …and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” This approach has been adopted in the context of Law Society penalty cases: Law Society of Ontario v. Barnwell, 2024 ONLSTA 15, at paras. 117-119, aff’d 2025 ONSC 1825 (Div. Ct.).

143In my view, nothing in the Hearing Panel’s reasons show a failure to adhere to the applicable legal principles. I agree with the Appeal Panel’s conclusion, at para. 126, that “[t]he hearing panel’s analysis represents a nuanced approach towards the ‘connection’ component of the test and did not improperly insist on a direct causal link before systemic racism could be found to be mitigating.”

(v) Relying on the Appellant’s Conduct of the Hearing to Increase Penalty

144The appellant submits that the Hearing Panel relied on his conduct during the hearing as an aggravating factor, contrary to the principles set out in R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500, at p. 506, which were adopted in Barnwell (Div. Ct.), at paras. 82-83. The Hearing Panel expressly referred to Kozy and Barnwell (at paras. 39-43, 84) and was well aware that the appellant’s conduct at the hearing was not an aggravating factor. The Hearing Panel was entitled to conclude, as it did at para. 64, that the appellant’s conduct during the hearing was relevant in determining whether past findings of misconduct should be discounted.

(vi) Failing to Consider That the Conduct was in the “Heat of the Moment”

145The appellant submits that the Hearing Panel erred in failing to consider that the appellant’s conduct was in the “heat of the moment” and failed to take into account that emotions run high during a criminal trial and justice system participants must expect some criticism. I agree with the Appeal Panel’s conclusions, at paras. 126-128, that the Hearing Panel did take these factors into account and that there was no palpable and overriding error with respect to the findings of fact it made in this regard.

(vii) Inconsistent Findings

146The Hearing Panel concluded that it was “not satisfied that Mr. Guiste is rehabilitated” (at para. 96) but also stated that it “could not conclude he was likely to reoffend” (at para. 97). The appellant submits that these conclusions were inconsistent. The Appeal Panel agreed that the conclusions “seem to be somewhat at odds” but concluded that this did not have a material impact on the penalty (at para. 137). I agree.

F. Appeal of the Costs Award

(i) Overview

147The Hearing Panel ordered costs against the appellant in the amount of $225,000, to be paid by July 16, 2029 in five equal yearly instalments of $45,000. The Appeal Panel upheld the costs award.

148Hearing panels have a broad discretion with respect to awarding costs, which they exercise by considering a number of factors, including the range of costs awards in comparable cases, the length of the hearing, the complexity of the matter, the conduct of the parties, the licensee’s ability to pay, and other factors: Law Society of Ontario v. Perrelli, 2018 ONLSTH 80, at para. 48.

149Although the Hearing Panel has a broad discretion and referred to the relevant factors, I have nevertheless concluded that it erred in its approach to the issue of costs and the decision it reached is unreasonable. In my view, the Hearing Panel erred in principle, failed to apply the principle of proportionality, made related errors regarding the appellant’s financial circumstances, and ordered costs that were punitive.

(ii) The Principle of Proportionality

150Proportionality is a “key consideration” in making a costs award in discipline cases: Moore, at para. 143; Reid, at para. 227; Clokie, at para. 72; Law Society of Ontario v. Mazo, 2026 ONLSTH 36, at para. 155. However, the Hearing Panel made no mention of proportionality in its costs decision, which is similar to what occurred in Moore, at paras. 144-145.

151In addition to failing to mention proportionality, two related aspects of the Hearing Panel’s decisions support the conclusion that proportionality was not considered: (1) the Hearing Panel’s failure to properly address the appellant’s financial circumstances; and (2) the Hearing Panel’s failure to consider the punitive effect of the costs order.

152This error in principle in central to the costs determination and is sufficient, on its own, to find the costs decision unreasonable and send the issue of costs back to the Hearing Panel to be determined in accordance with this principle. The importance of this error is underscored by the Panel’s approach to the appellant’s financial circumstances and the punitive effect of the costs award.

(iii) Failure to Give Proper Consideration to Financial Circumstances

153The appellant provided evidence of his financial circumstances. Given the appellant’s income and financial situation, the fact that he is supporting his two daughters, and his unchallenged evidence that he has little money left over after paying his household expenses, it will be virtually impossible for him to make payments of $45,000 per year, which represents well over half of his before-tax income in 2022.

154The only consideration the Hearing Panel gave to the appellant’s financial circumstances was that they justified a reduction from the amount of $338,000 set out in the respondent’s bill of costs (at para. 119). The Hearing Panel did not consider whether the amount awarded respected the principle of proportionality in light of the appellant’s financial circumstances, nor did it address the issue of whether the costs award was one which the appellant would ever be able to pay. In short, while the Hearing Panel made reference to the appellant’s financial circumstances, it gave them no meaningful consideration.

155In concluding that the appropriate quantum of costs was $225,000, the Hearing Panel relied on a number of cases it found to be comparable based on the lengths of the hearings (at paras. 106-110): Law Society of Upper Canada v. Chojnacki, 2011 ONLSHP 170; Law Society of Upper Canada v. Farkas, 2018 ONLSTA 2; Law Society of Upper Canada v. Sriskanda, 2016 ONLSTH 33; Law Society of Ontario v. Goodman, 2021 ONLSTH 20 at para. 28. While the costs awards in other cases may be relevant to proportionality, the Hearing Panel failed to take into account that in none of those cases, all but one of which (Chojnacki) involved lower costs awards than in this case, was there any evidence of financial hardship.⁷

156Furthermore, in considering the appropriate penalty, the Hearing Panel took into account the fact that the appellant’s practice focusses on assisting a marginalized and underserved community, but did not link this to the issue of financial hardship in awarding costs. The two issues are, however, clearly related. Serving marginalized members of society who have no resources is not lucrative and for that reason is work that many lawyers avoid. The appellant’s financial hardship is not as a result of poor investment decisions or other factors, but because he has chosen to prioritize representation of disadvantaged people over profitability. Such choices by members of the profession are to encouraged. Costs orders which have a disproportionate effect on those who make such choices has the opposite effect.

(iv) Failure to Consider Punitive Effect

157 Section 45.1 of the Law Society Act provides that a failure to pay a costs award results in a mandatory suspension of a lawyer’s licence until the costs are paid. The costs award in this case is therefore effectively a revocation of the appellant’s licence, as explained in Law Society of Ontario v. von Achten, 2022 ONLSTH 117, at para. 66:

We are satisfied that Ms. von Achten’s income and assets are such that a $40,000 costs order would be very difficult, and perhaps impossible, to pay. We are concerned that a $40,000 costs order could well effectively amount to revocation given s. 45.1 of the Law Society Act, RSO 1990, c. L.8. We are also concerned that a $40,000 costs order could well, in comparable circumstances, be an effective bar to defending allegations of professional misconduct.

The Appeal Panel was alive to this issue in determining the costs of the appeal, but it is not considered in the Hearing Panel’s reasons.⁸

158I recognize that the profession as a whole should not bear the costs of prosecuting misconduct: Chuang v. Royal College of Dental Surgeons of Ontario (2006), 2006 CanLII 19433 (ON SCDC), 211 O.A.C. 281 (Div. Ct.), at para. 19; Reid, at para. 156. However, this objective is neither advanced nor achieved by a costs award that the individual will be unable to pay. Furthermore, this court has recognized that “members should not be liable for the whole costs of defending themselves, particularly when their right to practise is at stake”: Chuang, at para. 19; Reid, at para. 156.

159A costs order is not a penalty and is not intended to be punitive: Law Society of Ontario v. Poproski, 2025 ONLSTH 141, at para. 36. Yet that is the effect of a costs award that the appellant will be unable to pay, as was explained in R. Centa, D. Cooney, “Trends in Costs Awards Before Administrative Tribunals” (2014), 27 Can. J. Admin. L. & Prac. 259, at pp. 262-263:

In practice, professional discipline bodies make costs orders more regularly than most other administrative tribunals. The Ontario Divisional Court has explained this power on the basis that other members of the profession should not bear the costs of prosecuting the misconduct of guilty members. At the same time, in a discipline hearing, the individual’s right to practise as a professional is at stake. The costs of defending one’s ability to practise one’s chosen profession should not be so prohibitive as to prevent individuals from defending themselves. If there is a finding of misconduct and the individual loses the right to practise, a costs award in addition to the revocation of the licence can be devastating. Indeed, it can affect the ability to recover from the discipline and return to practice, if permitted. In this way, a costs award is not intended to be a punitive measure to supplement whatever penalties the panel imposes but a balancing measure that reflects the privilege of membership in a professional organization.

160In this case, the Hearing Panel did not order revocation. Yet the costs award will result in an effective revocation.

161There are very few Law Society Tribunal decisions where costs were awarded that were as high as in this case. It is important that “[c]osts awards not be so high as to create a real practical barrier to Members being able to defend themselves in discipline proceedings”: Moore, at para. 151; von Achten, at para. 66; Centa, at p. 262. The Hearing Panel gave no consideration to this principle.

162The respondent points out that s. 58(2) of Law Society of Ontario By-Law 11, Regulation of Conduct, Capacity and Professional Competence, allows a licensee against whom a costs award is made to apply to the Executive Director, Professional Regulation for relief, which can include an extension of time in which to pay for up to one year or payment of a lesser amount. While this provision provides a valuable safeguard in cases where an individual is unable to pay due to unforeseen circumstances, it does not address the concerns that arise in this case. Section 58(2) is not intended to allow a Hearing Panel to delegate to the Executive Director its responsibility to ensure that costs awards are not unduly punitive.

163I would set aside the Hearing Panel’s costs award and remit the issue of costs to the Hearing Panel to be redetermined in accordance with these reasons.

III. DISPOSITION

164I would allow the appeal with respect to the costs order and remit the issue of costs to the Hearing Panel for redetermination. I would dismiss the appeal in all other respects.

165The parties have agreed that the successful party is entitled to costs of $8,750.

Schreck J.

BROWNSTONE J.:

166I have had the opportunity to review the reasons of my colleague. I agree with those reasons and the result with respect to the appeal on finding and penalty.

167I come to a different conclusion when it comes to costs. As noted by the Court of Appeal, the disciplinary tribunal has broad and discretionary jurisdiction to award costs: Reid, at para 24. Costs awards attract a significant degree of deference on appeal. The question is not whether this court would have reached a different conclusion, weighed the relevant factors differently, or fixed a different amount of costs. The question is whether the tribunal made an error in principle or was plainly wrong: Casella, at para. 27.

168The LSO $338,000 bill of costs and related evidence has not been put before the Court on this appeal and the quantum of the full bill is not a ground of appeal.

169The factors to consider when making costs awards in Law Society proceedings were appropriately summarized by the Hearing Panel at para. 103 of its costs reasons:

The approach to determining costs is set out in Perrelli [citation omitted]. The panel is directed to find an appropriate general range considering key litigation steps including pre-hearing appearances, the length of the hearing and the work product of the LSO representatives. In determining a place within that range, we are to consider the complexity, conduct of the parties that lengthened the proceeding, financial hardship and any other factors particular to the case.

170The Hearing Panel did just that. First, the Hearing Panel situated the costs sought and awarded within ranges sought and awarded in other cases. The Law Society submitted that the general costs range for a 27-day hearing was between $270,000 and $390,000. The LSO bill of costs was $338,000, and the LSO sought $250,000 based on Mr. Guiste’s limited income and ability to pay. Mr. Guiste’s submission was that the range was between $25,000 and $200,000.

171The Hearing Panel reviewed the cases and found the general range to be between $200,000 and $300,000.

172The Hearing Panel made significant findings that formed the foundation of its costs decision, as follows (at paras. 112-115):

The hearing should have taken no more than six or seven days. The additional days were required entirely on account of Mr. Guiste’s actions. There is no doubt that he caused costs to be incurred without reasonable cause. We agree with the Law Society that many of the steps he took were simply improper, vexatious, and/or unnecessary. He made what should have been a relatively simple hearing complex.

Mr. Guiste did not have a discernable plan for conducting examinations. His cross-examinations were lengthy, repetitive, and unfocused. As a result, they were unproductive. In his closing submissions, he made little reference to evidence obtained over 11 days spent cross-examining three Law Society witnesses, Ms. Kirsh, Mr. Rinaldi and Mr. Bergman. Mr. Guiste’s own testimony in-chief lasted for six days and was repetitive and directionless. When, after four days of testimony, I asked how much longer he would be, he said, “I don’t know, I don’t plan this.”

Mr. Guiste’s document management wasted considerable time as well. He did not adhere to Rule 10.5 or the pre-hearing conference adjudicator’s direction to deliver his book of documents one month before the hearing. Instead, he introduced 90 individual documents, one at a time and on the fly throughout the hearing. Almost none of these were used in closing argument. There was considerable delay on account of his late arrival or late return from breaks because he had to find a document and send it to opposing counsel and to the Tribunal before it could be introduced and marked. On March 1, 2022, after the evidence was closed, Mr. Guiste sought leave to introduce and mark five documents, four of which we had already refused to admit into evidence.

There were countless letters, requests, and case conferences to address various issues during the hearing, which resulted in over 40 endorsements. Many of the endorsements were lengthy and contained substantive reasons on Mr. Guiste’s requests or motions. There were also three published reasons for decision on his motions during the hearing. Many of Mr. Guiste’s motions and requests were helpfully summarized in the Law Society factum. Mr. Guiste also made three attempts to have the Law Society’s expert, Mr. Bergman, disqualified from giving evidence.

Mr. Guiste was on notice that his conduct was causing costs to mount. On several occasions, Law Society counsel made that point.

173The Panel went on to consider Mr. Guiste’s financial constraints. It concluded as follows (at paras. 118-119):

Considering the length and complexity of the hearing, Mr. Guiste’s role in lengthening it, the notice given that costs were mounting, Mr. Guiste’s financial limitations, and the clientele he serves, we have concluded that a cost award of $225,000 is fair and just in all the circumstances.

The reduction from $338,000 recognizes Mr. Guiste’s limited financial resources and the nature of his practice. At the same time, it recognizes that other members of the professions should not subsidize Mr. Guiste’s found misconduct or his conduct in lengthening the proceeding.

174I respectfully do not agree with my colleague that the Hearing Panel afforded no weight to Mr. Guiste’s financial circumstances. It specifically adverted to his circumstances, and weighed them as one relevant factor among several. Indeed, this was the factor that contributed to the panel ordering a reduced costs award and providing Mr. Guiste with six years to pay the award.

175I note that the Appeal Panel, in rejecting Mr. Guiste’s costs appeal, also referred to his limited financial resources. It noted that financial hardship is one factor among many to consider, and that the hearing panel properly applied this principle.

176It was for the tribunal to weigh that factor in the context of the case before it. It is not for this court to re-weigh the factors and determine that Mr. Guiste’s financial circumstances are to be given greater weight than other relevant factors.

177I pause here to address s. 58 of the Law Society’s By-Laws, raised by the Law Society in its costs submissions. That provision is found in Part VII of the bylaw, entitled “Deadline for payment of orders for costs.” It gives authority to the Director of Professional Regulation to extend deadlines for costs payments, establish a payment plan for costs awards, waive interest, or deem a costs award to be satisfied. That provision could not save a costs award that is unreasonable or unfit. However, I agree with the Law Society that the provision demonstrates that, should Mr. Guiste be unable to make his annual costs payments, the door is not closed to further arrangements being made.

178I also wish to address the case of Moore. In Moore, this court reduced the $690,376.24 in costs ordered by the hearing panel after a 28-day hearing to $450,000. The court noted that the hearing panel had failed to consider proportionality. The panel, in awarding costs, expressed that it found “no reason” to justify a reduction in the costs award sought by the prosecution, thereby indicating it did not consider the issue of proportionality. Further, the court in Moore found that some of the blame for the length of the proceeding rested with the tribunal. Neither of these propositions applies to this case.

179In my view, the entirety of the Hearing Panel’s costs decision reflected its grappling with the concept of proportionality. The question is not whether the panel used the word “proportionality,” it is whether its reasons reflect that it considered whether its award was a proportionate one. In my view, the reasons reflect consideration of the appropriate factors, including proportionality. The panel expressly considered Mr. Guiste’s financial situation and the clientele he serves.

180My colleague expresses concern that the costs award in this case creates a precedent that creates barriers to members’ ability to defend themselves. Again, I take a different view. As noted above, the tribunal repeatedly noted that Mr. Guiste unnecessarily complicated and extended the hearing. But for these complications, the hearing would have taken six or seven days. Mr. Guiste was repeatedly told that the way in which he was conducting the hearing would result in the Law Society seeking an increased costs award. These warnings apparently had no effect. In my view, the court should equally consider the adverse precedential value of a reduction in a costs award in his case. A member who has limited means should have the same incentive as do other members to keep the hearing process running smoothly, to follow pre-hearing directions, to avoid steps that are “improper, vexatious, and/or unnecessary,” to avoid a six-day, unplanned examination-in-chief, and to ensure proceedings are not unnecessarily extended (Hearing Panel findings, paras. 111-113).

181The Hearing Panel exercised its discretion without reviewable error. The Court of Appeal in Reid, at para. 24, has affirmed both the right and the responsibility of a regulatory body “to protect its members from the weight of the expense of protracted disciplinary hearings.”

182I see no error in principle and no unreasonableness in the Hearing Panel’s identification or application of the relevant principles.

183I would dismiss the costs appeal.

Brownstone J.

I agree. ______________________________

Matheson J.

Footnotes

Reported as Law Society of Ontario v. Guiste, 2023 ONLSTH 59.
Reported as Law Society of Ontario v. Guiste, 2024 ONLSTH 78.
Reported as Guiste v. Law Society of Ontario, 2025 ONLSTA 17.
The mistrial ruling is reported as R. v. Ram, 2015 ONCJ 200.
The admissibility of Mr. Bergman’s evidence was the subject of two pre-hearing rulings by the Hearing Panel which are reported as Law Society of Ontario v. Guiste, 2019 ONLSTH 153 and Law Society of Ontario v. Guiste, 2021 ONLSTH 71. The issue was also addressed by the Hearing Panel in its decision on the merits at paras. 158-159.
While the law may have been unclear at the time of the Ram trial, it is doubtful that a police investigative policy would be treated as first-party disclosure today: R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at paras. 18-22; R. v. Zameer, 2023 ONSC 6396, at para. 4.
In its submissions, the respondent also relied on Clokie, which is not a Law Society case, where a costs award of $318,297.87 was upheld by this court. The court noted that there was no evidence of the financial impact of the costs award: Clokie, at paras. 66, 73.
The Appeal Panel’s costs decision has not been appealed.

Guiste v. Law Society of Ontario, 2026 ONSC 4419

Case Summary

REASONS FOR JUDGMENT

I. FACTS

A. The Appellant’s Background

B. The R. v. Street Trial

C. The R. v. Ram Trial

D. Expert Evidence

E. The Hearing Panel’s Conclusions

F. The Penalty Hearing

G. Appeal to the Appeal Panel

II. ANALYSIS

A. Jurisdiction and Standard of Review

B. Consideration of Allegations Not in the Notice of Application

C. Application of the Factors in Groia v. Law Society of Upper Canada

D. Admissibility of Expert Evidence

E. Appeal of the Penalty Decision

F. Appeal of the Costs Award

III. DISPOSITION

Footnotes

Guiste v. Law Society of Ontario, 2026 ONSC 4419

Case Summary

REASONS FOR JUDGMENT

I. FACTS

A. The Appellant’s Background

B. The R. v. Street Trial

C. The R. v. Ram Trial

D. Expert Evidence

E. The Hearing Panel’s Conclusions

F. The Penalty Hearing

G. Appeal to the Appeal Panel

II. ANALYSIS

A. Jurisdiction and Standard of Review

B. Consideration of Allegations Not in the Notice of Application

C. Application of the Factors in Groia v. Law Society of Upper Canada

D. Admissibility of Expert Evidence

E. Appeal of the Penalty Decision

F. Appeal of the Costs Award

III. DISPOSITION

Footnotes