LAW SOCIETY TRIBUNAL

APPEAL DIVISION

Date: January 21, 2026

Tribunal File No.: 25A-007

BETWEEN:

Georgiana Stefania Masgras-Irshidat

Appellant

• and -

Law Society of Ontario

Respondent in appeal

Before: Gerald Chan (chair), Ingrid Berkeley, Paul Le Vay, Natalia Rodriguez, Margaret Waddell

Heard: August 6, 2025

Appearances:

Gavin MacKenzie and Brooke MacKenzie, for the applicant

Joshua Elcombe, for the respondent in appeal

Summary:

MASGRAS-IRSHIDAT – Appeal ‒ Findings and Penalty ‒ The Lawyer had been found to have engaged in professional misconduct by bringing an application for an injunction to stop her client’s family’s decision to take the client off life support without instructions and against the family’s wishes ‒ A nine-month suspension was ordered in light of the seriousness of the misconduct, which impacted the functioning of the legal system and intruded into private family matters ‒ The Lawyer appealed the finding and the penalty and the Law Society cross-appealed the penalty ‒ The Appeal Division dismissed both appeals, finding that the Hearing Division did not err in its findings, in applying the abuse of process doctrine, or in its penalty decision ‒ Costs submissions are invited.

REASONS FOR DECISION

1Natalia Rodriguez, Gerald Chan, and Margaret Waddell (for the panel):– The lawyer, Georgiana Stefania Masgras-Irshidat (Lawyer), appeals a decision dated June 6, 2024 (2024 ONLSTH 56, the conduct decision), finding that she engaged in professional misconduct, and a decision dated March 12, 2025 (2025 ONLSTH 32, the penalty decision), suspending her licence for nine months. The Law Society cross-appeals the penalty decision and asks that the Lawyer’s licence be revoked.

2The hearing panel found that the Lawyer engaged in professional misconduct in respect of two clients, Client A and Client B. The findings with respect to Client B are not at issue in this appeal.

3With respect to Client A, the panel found that the Lawyer acted without instructions when she sought a court order to pre-empt the decision of Client A’s family to have Client A removed from life support. The panel also found that the Lawyer engaged in professional misconduct when she drafted and filed a misleading affidavit and when she used an altered Authorization and Direction signed by Client A for a purpose other than the purpose for which it had been given. Finally, the panel found that the Lawyer was acting in a conflict of interest without first obtaining Client A’s consent.

4The Lawyer appeals the conduct decision alleging, among other things, that the panel erred in failing to apply the rationale in Groia v Law Society of Upper Canada, 2018 SCC 27 (Groia SCC), erred in applying the CUPE principle against abuse of process, and made a palpable and overriding error of fact that tainted its credibility assessment. The Lawyer appeals her nine-month suspension on the basis that it is excessive, given the panel’s erroneous findings, and given that she operates a professional corporation under which 12 other lawyers practice.

5The Law Society cross-appeals on the basis that the panel erred in not revoking the Lawyer’s license.

6For the reasons that follow, we dismiss the appeal and the cross-appeal.

FACTUAL BACKGROUND

7The Lawyer was called to the bar in 2012. She opened her own practice in 2014 as a sole practitioner and began hiring other lawyers in 2018. She now employs 12 lawyers and approximately 25 non-lawyer staff under her professional corporation.

8The Lawyer’s husband is a chiropractor. He owns two businesses, Meditecs and Spinetec, that provide assessment and rehabilitation services.

Client A

9Client A retained the Lawyer after a motor vehicle accident (MVA) which occurred on December 17, 2016. Client A was seeking statutory accident benefits and wished to launch a tort claim. On December 22, 2016, Client A provided the Lawyer with a signed Authorization and Direction (A&D) to obtain his health records in connection with his claims. Client A received outpatient treatment from Spinetec for the injuries caused by the accident.

10On July 3, 2017, Client A suffered a severe heart attack, leading to a serious brain injury due to lack of blood flow to the brain. He required multiple forms of life support to keep him alive, and the prognosis was guarded. His family understood this and approximately 25 family members gathered at the hospital.

11The Lawyer first heard about Client A’s hospitalization on July 4, 2017, when her husband was advised that Client A could not attend for his appointment at Spinetec because he had been admitted to hospital. In the next few days, the Lawyer sought to obtain information. She spoke to Client A’s spouse, who told her that Client A was “likely not going to make it”.

12The doctors attending Client A recommended to his family that, as there appeared to be no prospect of recovery, he should be removed from life support. On July 6, 2017, Client A’s family, including his spouse, children and siblings, made the decision to withdraw life support so that his organs could be donated. A donor match was identified for his kidneys, and a transplant team was scheduled to attend at the hospital on July 8, 2017.

13The Lawyer heard about the plans to remove Client A from life support in the afternoon or evening of July 7. She contacted Client A’s spouse to discuss the situation and urged her to reconsider. She testified that the spouse’s responses were “not appropriate” and she felt that there was something “not right” about the situation. The Lawyer and her husband also contacted other family members to urge reconsideration. Notwithstanding these efforts, the family did not change its decision.

14The Lawyer then applied ex parte before a judge of the Superior Court on the night of July 7, 2017, for an order prohibiting the withdrawal of life support. The application was supported by an affidavit from the Lawyer’s spouse, stating that the application arose from the MVA. His affidavit indicated that Client A was a patient at his multidisciplinary clinic, where he was being treated for his injuries from the MVA. The affidavit did not mention Client A’s heart attack or brain injury.

15At around 3:00 a.m., on July 8, 2017, the Lawyer served the application materials on a nurse at the hospital’s intensive care unit (ICU). The materials were then emailed to the court. The Lawyer did not advise Client A’s wife or family of the application, nor did she serve them with the materials.

16On the morning of Saturday, July 8, 2017, after reviewing the materials filed, including a supplementary affidavit concerning service sworn by the Lawyer’s spouse, Regional Senior Justice Arrell of the Superior Court granted an interim injunction preventing the hospital and Client A’s doctors from withdrawing life support. He ordered that the matter return before him on Monday, July 10, 2017. The doctors and the hospital immediately challenged this order.

17Dr. Hinkewich, the doctor most responsible for Client A’s care, together with counsel for the hospital, sought to bring this matter back to the court to vary the order, on an urgent basis. According to Dr. Hinkewich, Client A could suffer further brain damage which could lead to organ damage and jeopardize the organ donation.

18Associate Chief Justice Marrocco of the Superior Court heard the motion to vary on very short notice. On Sunday, July 9, 2017, he ordered that the interim injunction be varied and set aside, based on the information provided by Dr. Hinkewich and the hospital. While this motion was being heard, the participants became aware that Client A had become brain dead. The variation of the order was immediately communicated to the respondents. Client A was removed from life support, and the organ donation was accomplished.

19On November 28, 2017, Justice Arrell ordered the Lawyer to pay Dr. Hinkewich’s and the hospital’s costs related to her ex parte application. He noted that his original order had been correctly set aside, based on the new information provided.

20The Lawyer appealed Associate Chief Justice Marrocco’s order (even though Client A had died), as well as Justice Arrell’s costs order, to the Court of Appeal for Ontario. On March 14, 2018, the Court of Appeal dismissed the Lawyer’s appeal and ordered her to pay costs of the appeal.

21The Lawyer sought leave to appeal to the Supreme Court Canada, which was dismissed with costs in October 2018.

The conduct decision

22The conduct hearing proceeded with some allegations being admitted and some contested in respect of Client A. The contested allegations concerned the Lawyer’s conduct in seeking to overturn a decision of Client A’s family without authority or instructions, and contrary to the wishes of Client A’s family; drafting and filing an affidavit with misleading information; obtaining an interim injunction without adequate notice to Client A’s family, physician, and/or hospital; and opposing efforts to set aside the interim injunction.

Application of CUPE principles

23The panel adopted the principles in Toronto (City) v CUPE, Local 79, 2003 SCC 63, in which it was held that the doctrine of abuse of process may preclude relitigation of issues already decided by a competent court or tribunal. The panel stated that many of its conclusions in the conduct decision relied on the three prior court decisions: the Marrocco decision, the Arrell decision on costs, and the Court of Appeal decision.

24The panel agreed with the three decisions which all found that the Lawyer acted without instructions and against the wishes of the family when she attempted to overturn its decision to remove Client A from life support. It noted that the Lawyer acknowledged that she did not have instructions to proceed as she did.

Applicability of Groia decision

25The Lawyer’s defence was that she did not have an intention to engage in the misconduct and that the panel had to consider her state of mind: she honestly did not believe she was violating any rules and felt compelled to protect the life of her client. The Lawyer claimed she had “real concerns” especially since she believed the relationship between Client A and his spouse and his family was not good. She said she acted in a way she thought was consistent with her client’s wishes, since he had never told her he wanted to die. She felt she had to do something, she thought she was doing the right thing, and she did not “knowingly” engage in misconduct.

26In making this argument, the Lawyer relied on Groia v Law Society of Upper Canada, 2018 SCC 27. She submitted Groia supported her position that professional misconduct should not be found where a lawyer’s actions result from a wrong or mistaken but sincerely held belief.

27The panel concluded that the reasoning in Groia did not apply. It noted that in Groia, the issue was alleged incivility, due to Mr. Groia’s allegations of prosecutorial misconduct against another lawyer. Groia was about the need to balance civility against a lawyer’s duty of resolute advocacy.

28The panel stated that Justice Moldaver in Groia concluded that “an error of law should not be part of the assessment of whether the allegation [of prosecutorial impropriety or other challenge to integrity] had a reasonable basis but could be considered with respect to whether the allegation was made in good faith.” In the panel’s view, the approach regarding incivility was specific and not general in effect.

Findings of misconduct

29The panel found professional misconduct. The Lawyer did not dispute that she had no authority to bring an ex parte application for an order prohibiting the withdrawal of life support to Client A. The panel then reviewed the portions of the Court of Appeal decision that dealt with acting without instructions, and stated at paras 69-70:

The Court concluded that in taking these unauthorized steps, the Lawyer breached the basic principles that apply to the conduct of lawyers, particularly their duty to act honourably.

We accept and rely on these conclusions, as well as the on the reasons of Arrell J. and Marrocco J., and find that the allegation of acting without instructions has been proven.

30The panel addressed the second issue, the misleading affidavit. It reviewed the record and the ways in which the affidavit was misleading. It concluded that the affidavit contained misleading statements, as alleged.

31The panel also found that the Lawyer did not provide notice of her application to pre-empt the decision to withdraw life support to the most interested parties: Client A’s family and his treating physicians. The Lawyer argued that she was unable to do so due to her urgent concern that Client A’s life support would be removed on July 8, 2017, and by her considerable fatigue after having worked through the night to prepare and serve the application materials. The panel rejected this explanation because the Lawyer could have arranged for someone else to serve the interested parties. The panel further stated at para 88:

We find it is more likely that the family and treating physicians were not served because the Lawyer did not wish to have her application contested. She was aware that she had no authority or standing to bring the application, and wished to prevent the removal of life support, by any means available to her.

32The panel concluded that the Lawyer knowingly failed to serve notice on the appropriate respondents. By doing so, it found she acted dishonourably and without integrity, she engaged in conduct prejudicial to the administration of justice, and that tended to bring discredit upon the legal profession. The panel concluded this was professional misconduct.

33The Lawyer’s efforts opposing the setting aside of the injunction were also found to be professional misconduct. The panel noted that she should have understood, after her initial efforts on behalf of her former client, that she did not have legal or moral authority to involve herself further in a private matter, especially after Associate Chief Justice Marrocco reversed the decision of Justice Arrell. The panel characterized her actions as “neither urgent, proper or useful” and stated that they reflected “only the Lawyer’s entrenched interest in justifying and maintaining her own position.” It concluded that the Lawyer engaged in conduct prejudicial to the administration of justice, and in conduct that tended to bring discredit upon the legal profession.

Credibility findings

34The panel addressed the Lawyer’s credibility, citing the misrepresentations and omissions in the affidavits, which were drafted by the Lawyer. At para 102 of the conduct decision, the panel states, “These misleading and deceptive documents cast serious doubt on the Lawyer’s honesty and integrity, and the veracity of her testimony.”

35At para 103, the panel continued its credibility assessment:

We also find her credibility and honesty is impeached by the fact that, as discussed below, she admits she deliberately falsified or caused to be falsified the A&D documents signed by Client A. Regardless of the bona fides of her wish to keep Client A alive on life supports, she acted dishonestly in altering the documents.

[Emphasis added]

36The panel made two other observations with respect to the Lawyer’s credibility. First, although the Lawyer asserted that she believed her client wanted to “remain alive”, the panel doubted the honesty of that belief. There was no evidence of the client’s actual wishes, and, in any event, the family would have had a better understanding of those wishes than the Lawyer.

37Second, it found the Lawyer’s assertions about her objectives and motivations lacked an air of credibility. It questioned the Lawyer’s belief that she was “doing the right thing” for her client after he had already passed away.

Uncontested allegations regarding Client A

38The panel reviewed the evidence in the ASF regarding the altering of Client A’s A&D and the use of the A&D for a purpose other than the purpose for which it had been given.

39Regarding the alteration of the A&D, the panel stated at para 120,

According to the ASF on July 7, 2017, the Lawyer had urgently directed her legal assistant to write to the hospital for copies of Client A’s medical records from July 3, 2017 onward. The assistant did so and enclosed an altered version of the A&D so that it would cover all records from July 1, 2017 onward. The covering letter dated July 9, 2017, sent with the altered A&D, indicated that the request was in relation to the client’s “Bodily Injury claim for the motor vehicle accident on December 17, 2016”. Copies of the relevant documents are included in the joint document book.

40The panel reviewed the evidence of how the Lawyer, or her husband at her request, subsequently attended the hospital to attempt to obtain Client A’s health records using the altered A&D. It noted that she was seeking information to support her position in the hospital’s claim for costs against her.

41At para 123, the panel stated,

We find that the falsification of the A&D shows a deliberate course of dishonest conduct. The document was manipulated in order to assist in the litigation of this matter, and not as a result of an impulsive and emotional need to take action. Such conduct is clearly prejudicial to the administration of justice – documents wrongfully obtained might well taint or prejudice the outcome of a legal proceeding. The conduct tends to bring discredit on the legal profession.

42Finally, as admitted by the Lawyer, the panel found that the Lawyer contravened the conflict of interest rules. She acted for Client A in the proceeding for his accident benefits while Client A was receiving treatment and services through those accident benefits from her husband and his clinics. Client A did not provide written consent that the Lawyer act for him despite the potential conflict of interest. Nor did the Lawyer record any oral consent had been provided.

Client B

43With respect to Client B, the panel found – and the Lawyer admitted – that she contravened the conflict of interest rules in the same way as with Client A and that she disclosed Client B’s confidential information to third parties, contrary to Rules 3.3-1 and 3.3-4 of the Rules of Professional Conduct (the Rules).

The penalty decision

44At the penalty hearing, the Lawyer argued she should be issued a reprimand, while the Law Society sought revocation of the Lawyer’s licence. The panel determined the appropriate penalty was a nine-month suspension.

45At para 20 of the penalty decision, the panel set out the four findings of misconduct with respect to Client A:

1. She acted without instruction and contrary to the wishes of Client A’s family (the legal substitute decision-maker).
2. She filed a misleading affidavit in the ex parte motion.
3. She provided inadequate notice of the application for the injunction.
4. She opposed the effort to set aside the injunction and persisted in her opposition to the courts’ orders long after it was appropriate to do so.

46In addition, the Lawyer had admitted the following misconduct regarding Client A:

1. She used a falsified version of Client A’s original Authorization and Direction (A&D) executed in connection with the MVA, for purposes other than the purposes for which it had been given. Someone from her office falsified the dates on the original A&D to seek Client A’s medical records after he had been hospitalized for the heart attack in July 2017.
2. She acted in breach of the conflict of interest rules by failing to obtain the informed consent of Client A, in respect of the MVA, in a situation where both she and her husband had a potentially conflicting interest in the matter, as her husband’s clinics had been providing rehabilitation services to Client A while she was representing him in his MVA claims.

47With respect to Client B:

1. The Lawyer acted in a conflict of interest in respect of Client B, who was also a client of her husband’s clinic. She had not obtained the client’s informed consent to proceed in this situation.
2. The Lawyer disclosed excessive confidential information about Client B in a situation where she was entitled to disclose some information, but should not have disclosed more information than was required.

48The panel noted that the Lawyer had, for the most part, admitted the misconduct. She acknowledged that it was wrong to file the appeals, and that her husband’s supporting affidavit was misleading but insisted that she had tried her best to explain what was going on at the time. She claimed she did not personally alter the A&D but did instruct her assistant to obtain the patient file. That said, the panel expressed concern that the Lawyer had “not fully grasped why [it] made a finding of serious misconduct in her case” and had not shown genuine remorse.

49The panel determined that, although the conduct was serious – involving multiple instances of grave misconduct, including dishonesty and a lack of integrity – it did not have the degree of seriousness requiring revocation. In the circumstances, a lengthy suspension would meet the established objectives and purposes of a penalty order: specific deterrence, general deterrence, rehabilitation or restitution, and maintaining the confidence of the public in the legal professions.

50After reviewing the factors for penalty outlined in Law Society of Upper Canada v Aguirre, 2007 ONLSHP 46, and their application to the Lawyer’s case, the panel concluded that the Lawyer’s conduct showed a distressing lack of judgement and restraint, and disregard for the Rules. It was not, however, malevolent or aimed at enriching or benefitting herself. No one profited or gained from her misconduct, and no one was ultimately cheated of or lost anything, apart from suffering the mental and emotional distress that the Lawyer’s conduct caused. Nevertheless, the panel found the conduct to be “very serious”.

51The panel addressed the Lawyer’s argument that her law firm is registered in her name and, if she were suspended, the operations of the entire firm would be suspended under the terms of the Lawyer’s Certificate of Authorization, putting all her employees and associates out of work. She argued that this consequential impact on others would be inappropriate and unfair, and that the most appropriate penalty would be a reprimand coupled with a substantial fine.

52The panel did not accept this argument because a reprimand, even combined with a fine, would not maintain public confidence in the professions. In any event, the panel did not think the Lawyer’s business structure “should dictate or control the penalty imposed.”

53After reviewing the relevant case law, the panel imposed a nine-month suspension.

ISSUES

54The issues we must decide on this appeal are the following:

• Did the hearing panel err in not applying the analysis in Groia to the allegation that the Lawyer acted dishonourably and without integrity?
• Did the hearing panel make a palpable and overriding error of fact when it stated that the Lawyer had admitted to falsifying the A&D or causing it to be falsified?
• Did the hearing panel err in finding a breach of Rule 2.1-1 in relation to her use of the altered A&D when that allegation had been withdrawn by the Law Society?
• Did the hearing panel err in relying on the CUPE abuse of process doctrine?
• Did the hearing panel err in imposing a nine-month suspension?

Submissions and analysis

Standard of Review

55The parties agree that the standard of review to be applied on appeal is:

• correctness, on questions of law;
• palpable and overriding error, for questions of fact and questions of mixed fact and law where the legal principle is not readily extricable; and
• an error in principle or a clearly unfit penalty, in respect of a penalty decision (Law Society of Ontario v. Manilla, 2021 ONLSTA 25 at para 10).

56The palpable and overriding error standard is a deferential standard, and the Appeal Division is to intervene “only if there is an obvious error” in the decision below that is determinative of the outcome of the case: Farsi v Da Rocha, 2020 ONCA 92 at para 35. A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence, and an error that affected the outcome of a case: Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 113. To demonstrate that the hearing panel engaged in a palpable and overriding error, the appellant must show that the error is one that is plainly seen, does not require review of all the evidence to identify, and has affected the result: Benhaim v St-Germain, 2016 SCC 48 at para 38.

Effect of Groia

Lawyer’s position

57The Lawyer submits the panel erred in failing to apply the reasoning in Groia, which, she submits, would have resulted in no finding of professional misconduct on the first allegation – acting without instructions. She argues that she acted in good faith, based on the information that she had at the time and therefore, like in Groia, her conduct was the result of a mistaken but sincerely held belief.

58The Lawyer argues that a finding that Rule 2.1-1 has been breached – that a lawyer has acted dishonourably or without integrity – requires proof of intention or subjective knowledge. A finding that a licensee acted dishonourably and without integrity should not be made where the licensee sincerely, albeit mistakenly, believed that what they were doing was right.

59The Lawyer points to two legal errors: (1) the hearing panel erroneously held that acting negligently would be sufficient to support a finding of acting dishonourably and without integrity and (2) the panel erred in holding that it could not apply the reasoning in Groia because it was specific to incivility, and “not general in effect”.

60The Lawyer argues that the hearing panel erred in finding a breach of Rule 2.1‑1 without considering good faith and the context of the Lawyer’s conduct including the following:

• the urgent, life-or-death context in which she was acting;
• that she believed the statements in the affidavit to be true based on the information available to her when drafting on an urgent basis, and accordingly did not deliberately mislead the court;
• that she erroneously believed that only the hospital was the proper respondent to her application (and not the doctors and Client A’s family); and
• that, throughout, she was trying to “do the right thing” in accordance with what she believed to be her client’s interests and wishes.

61In the circumstances, the Lawyer urges us to conclude that the panel erred in finding that she contravened Rule 2.1-1.

Law Society’s position

62The Law Society submits that the Lawyer is conflating knowledge in the context of professional misconduct with the concept of moral rightness. It argues that all that is needed to make out the contravention of Rule 2.1-1 is that the licensee knows of certain issues, or that the licensee is wilfully blind or reckless as to that knowledge. This knowledge element is distinct from a licensee’s subjective views as to the moral rightness or wrongness of their actions. In Law Society of Upper Canada v Bishop, 2012 ONLSHP 87, for example, it did not matter that the licensee felt he was “doing the right thing” by helping to deceive banks into advancing loans.

63The Law Society points out that, in this case, the panel found that the Lawyer knew she was not the legal substitute decision-maker and that she had no authority or standing to bring the application. It specifically found that she “was not ignorant of the rules and standards requiring instructions from clients and interfering with the administration of justice”.

64In addition, the panel did not accept the Lawyer’s assertions about her objectives and motivations and found they “generally lack[ed] an air of credibility.” These are findings of fact that cannot be disturbed on appeal.

65According to the Law Society, Groia does not apply. Groia was about the line between zealous advocacy under instructions from a client and raising allegations impugning another counsel. The Law Society submits that the conduct the Lawyer engaged in – for example, pursuing an unauthorized court proceeding or filing a misleading affidavit – was not advocacy.

Analysis

66We start our analysis on this ground of appeal with a discussion of Groia, given the centrality of that case to the Lawyer’s submissions.

67The Groia case arose from Mr. Groia’s in-court conduct during a quasi-criminal proceeding relating to Securities Act charges. In that hearing, Mr. Groia alleged, in good faith, that the prosecutor had engaged in prosecutorial misconduct using the most forceful of terms. His allegations were made based on his honestly held and reasonably based, but erroneous, views on disclosure and admissibility of documents.

68The appeal panel in Groia found that his conduct during the trial was uncivil and unprofessional, in breach of his professional and ethical obligations under Rules 4.01 and 6.03 of the Rules (and their predecessor rules), and therefore warranted a finding of professional misconduct. (Law Society of Upper Canada v Groia, 2013 ONLSAP 41, (“Groia appeal panel”) at paras 318-329) The matter was appealed to the Supreme Court of Canada, which ultimately allowed his appeal.

69In reaching its decision, the Supreme Court reviewed the decision of the appeal panel on a reasonableness standard. It concluded that the approach taken by the appeal panel in assessing whether incivility amounts to professional misconduct was reasonable. The Supreme Court also concluded that the appeal panel “set a reasonably precise benchmark that instructs lawyers as to the permissible bounds of ethical courtroom behaviour”. (Groia at para 62)

70The reasons of the appeal panel in Groia only related to the assessment of civility in the context of courtroom advocacy. (Groia appeal panel at paras 221 and 232) The Groia appeal panel concluded that

it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel unless they are both made in good faith and have a reasonable basis. A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel. (Groia panel at para 235)

71The Supreme Court found that the appeal panel erred in applying the test it had articulated by using Mr. Groia’s honestly held but mistaken understanding of the law to inform the question of whether the allegations were reasonably based. As the Court explained (at para 132 of Groia SCC):

The question for incivility purposes is not whether Mr. Groia was right or wrong on the law. Rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. In this case, they did.

72The Supreme Court expanded on this analysis as it relates to civility both inside and outside the courtroom. (Groia SCC at paras 77, 112-113, 118, and 121) However, there can be no doubt that the ratio of the case was addressing the bounds of civility in the profession.

73The Lawyer points to a series of cases which she argues have expanded the Groia analysis to situations beyond allegations of incivility, including decisions from various appeal courts. She relies on these cases in support of her argument that Groia should be applied to the assessment of her conduct, and that since she acted in good faith, based on the information she had at the time, she should not be found to have acted dishonestly, dishonourably, or without integrity.

74The appellate cases referenced by the Lawyer as expanding Groia beyond the civility context are: Law Society of British Columbia v Harding, 2022 BCCA 229, Histed v Law Society of Manitoba, 2021 MBCA 70, Merchant v Law Society of Saskatchewan, 2022 SKCA 2, and Law Society of Newfoundland and Labrador v Buckingham, 2023 NLCA 17.

75In Harding, the discipline panel found the lawyer engaged in professional misconduct for statements made in closing submissions in a jury trial that resulted in a mistrial. The statements included mocking an expert witness in a manner that the trial judge found to have crossed the line sufficiently to impact the outcome of the trial. On appeal, the BCCA found that the allegations of misconduct at issue were allegations of incivility (paras 81-82). In that context, it concluded that the hearing panel had failed to apply the Groia approach with respect to the lawyer’s in-court submissions, i.e. that the submissions must be made in good faith and the lawyer must have a reasonable basis for making them.

76In Histed, the first line of the MBCA decision states, “This appeal engages a consideration of the interplay between a lawyer’s professional obligation to act with civility and the lawyer’s duty of resolute advocacy and expressive rights.” The case was in all respects similar to the facts in Groia, and does not expand its application. Like the appellate court in Harding, the MBCA also emphasized at para 56 that the Groia analysis has two parts:

A bona fide belief or absence of bad faith is insufficient to insulate the lawyer from a finding of misconduct. The reason being that requiring anything less than a reasonable foundation “gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions” (quoting Groia SCC at para 86).

77The third appellate authority referenced by the Lawyer is Merchant, a decision of the Saskatchewan Court of Appeal. In that case, the Court did reference Groia outside of the context of allegations of incivility, and applied the two-part subjective/objective test for determining whether a lawyer had an honest but mistaken belief in the correctness of a legal position he advanced. The Court found on the facts before it that the law on the interpretation of the relevant term of the Indian Residential School Settlement Agreement was unsettled, and therefore that he did not intentionally breach its terms. In our opinion, Merchant does not assist the Lawyer because the issue of whether Groia applied outside of the incivility context was not canvassed by the hearing panel or on appeal. Rather, the hearing panel and the Court both accepted that a lawyer who advances an incorrect legal proposition based on a sincerely held belief that the position is legally correct should not, for that reason alone, be held to have committed an infraction of their professional obligations.

78The final appellate case cited by the Lawyer, Buckingham, related to out-of-court public statements made by the lawyer in which he was alleged to have breached his duty to the profession, the courts, or the administration of justice, and that he failed to act honourably and with integrity. Broadly, the allegations were about uncivil comments made by the lawyer about the administration of justice. The NLCA found that there were significant parallels to the case and the facts in Groia. This appeal court applied Groia to statements made outside of the court as well as in court, and in the context of a letter of counsel or caution by the Complaints Authorization Committee (of the Law Society of Newfoundland and Labrador), not a discipline hearing. Like the other appellate decisions, the NLCA emphasized at para 66 that Groia establishes a two-part test for determining when comments are civil, including that they be made in good faith and be reasonably based.

79The last case that the Lawyer heavily relies upon to support her position that Groia applies outside of the context of allegations of incivility is Law Society of Ontario v McCallum, 2024 ONLSTH 29. In that case, the focus of the hearing was on an allegation that the lawyer failed to act honourably and with integrity, in breach of Rule 2.1-1, by referring to a minor plaintiff as “a sexually mature young woman, not a ‘child’ as conventionally understood” in an affidavit. As the Lawyer did in the present case, the respondent in McCallum argued that to be found in breach of Rule 2.1-1, the licensee must have engaged in morally blameworthy conduct, and he denied that he had done so. The hearing panel rejected this submission.

80In McCallum at para 11, the parties agreed that the panel should apply the principles articulated in Groia in determining if Rule 2.1-1 had been breached, as the matter dealt with the in-court statements made by the lawyer.

81The McCallum panel concluded at para 174 that the Groia principles provide a common approach for assessing whether the lawyer has breached their professional duties as an advocate that support the administration of justice. This is a principled extension of the Groia test to apply to any in-court advocacy that is alleged to bring the administration of justice into disrepute. The panel went on to apply Groia by engaging in a proportionate balancing between the imperatives of expressive freedom and resolute advocacy (on the one hand) and the regulatory objectives of ensuring that lawyers fulfill their duties to their clients, protecting the administration of justice in civil actions, and protecting confidence in the administration of justice (on the other hand).

82The application of the Groia test was recently considered by the Divisional Court in Law Society of Ontario v Rappaport, 2025 ONSC 431. Rappaport involved allegations of a breach of Rule 5.6-1 where the lawyer had filed an affidavit that made personal attacks about a sitting judge of the Superior Court, as well as posting his accusations on the internet and keeping them online for months after his complaint was dismissed by the Canadian Judicial Council. The lawyer defended his actions as being free speech under s 2 of the Charter, among other grounds.

83The Divisional Court observed that,

According to Groia, a professional misconduct finding that engages a lawyer’s expressive freedom under s 2(b) of the Charter will only be reasonable if it reflects a proportionate balancing of the law society’s statutory objective with the lawyer’s expressive freedom;

and that “sanctioning a lawyer for good faith, reasonably based allegations that are grounded in legal error does not reflect a proportionate balancing” (at para 12).The Court went on to review the Appeal Division’s reasons in accordance with the general balancing called for in Groia, although the Court found it unnecessary to decide whether the specific two-part Groia test should be applied outside of the factual circumstances that Groia involved.

84Based on the above authorities, it seems clear that the general Groia approach of engaging in proportionate balancing of expressive freedom and resolute advocacy with the Law Society’s regulatory objectives applies to statements by an advocate even where the alleged professional misconduct is not incivility but a breach of some other rule. It may also be that the two-part test of asking whether the statements were made in good faith and have a reasonable basis applies more broadly beyond the civility context.

85However, applying the Groia test here provides no assistance to the Lawyer. The gravamen of the misconduct in this case does not concern statements made by the Lawyer in the course of advocacy but rather undertaking an entire litigation process without client instructions. Not only did the Lawyer apply for an injunction before Justice Arell and then Associate Chief Justice Marrocco without instructions, she then doubled down on this approach by appealing both the decision to reverse the injunction as well as the decision ordering costs against her to the Court of Appeal. This is far removed from the core of expressive freedom and resolute advocacy considered in Groia. As the panel held in McCallum at para 231:

It is also significant that the expressive rights that are engaged in litigation are primarily those of the client. The lawyer speaks for and on behalf of the client. The lawyer resolutely advocates for the client. Where a lawyer acts without instructions, the import of expressive rights and resolute advocacy can be much diminished. Where a lawyer’s advocacy is without instructions and contrary to the client’s reputational interests, the lawyer’s expressional rights and resolute advocacy are not much engaged, if at all.

86It is difficult to see how the Lawyer could satisfy either the subjective or the objective parts of the Groia test in these circumstances even if it were to apply. The Lawyer asserts that she believed she was doing the right thing, but the good faith that Groia speaks of is not satisfied by establishing a subjective belief in the moral rightness of one’s position. It must instead be grounded in a subjective belief in the facts that underlie the legal position being advanced. Here, that subjective belief did not exist because the Lawyer knew that she was acting without client instructions. For the same reason, the Lawyer’s actions cannot be said to have been based on any reasonable foundation. She was not acting on a mistaken understanding of the law like the appellant in Groia. She knew she needed client instructions and she knew she did not have them. The fact that she nevertheless believed in the righteousness of her cause cannot rescue her from a misconduct finding in these circumstances.

87Finally, the Lawyer also cites cases that deal with the requirement that misrepresentations be made intentionally (and not negligently) in order to ground a finding of acting dishonourably and without integrity: Law Society of Ontario v Ortiz, 2023 ONLSTH 60, and Law Society of Ontario v Mobberley, 2025 ONLSTA 2. These cases do not assist the Lawyer’s position with respect to the gravamen of the misconduct identified above. The relevant intentionality is the intent to act without client instructions, not the intent to do the right thing (or wrong thing).

88The hearing panel also found that the Lawyer acted dishonourably and without integrity in relation to two other actions: (1) failing to serve the application on Client A’s spouse, family, or treating physician; and (2) filing a misleading affidavit.

89With respect to the former, the panel expressly rejected the Lawyer’s explanation that she did not serve Client A’s spouse, family, or treating physician because she was preoccupied with her urgent concern that Client A’s life support would be removed and experiencing considerable fatigue from having worked through the night to prepare her materials. The panel specifically found it “more likely that the family and treating physicians were not served because the Lawyer did not wish to have her application contested.” In other words, the panel found that she acted intentionally. We see no palpable and overriding error in this finding.

90With respect to the latter, the panel stated at para 82, “We find that the affidavit contained misleading statements, as alleged by the Law Society.” Later in its reasons, the panel added that the “misrepresentations and omissions contained in Mr. Irshidat’s affidavits…cast serious doubt on the Lawyer’s honesty and integrity, and the veracity of her testimony”. While the reasons could have been clearer, on a fair reading of the reasons as a whole, the panel found at least recklessness with respect to the misleading statements in the affidavit. This is sufficient to ground a finding that the Lawyer acted dishonourably and without integrity: Ortiz, above at para 72.

Factual error re A&D

Lawyer’s position

91The Lawyer points to paras 103 and 123 in the conduct decision in which the panel states that the Lawyer deliberately falsified Client A’s A&D:

[103] We also find her credibility and honesty is impeached by the fact that, as discussed below, she admits she deliberately falsified or caused to be falsified the A&D documents signed by Client A. Regardless of the bona fides of her wish to keep Client A alive on life supports, she acted dishonestly in altering the documents.

[123] We find that the falsification of the A&D shows a deliberate course of dishonest conduct. The document was manipulated in order to assist in the litigation of this matter, and not as a result of an impulsive and emotional need to take action. Such conduct is clearly prejudicial to the administration of justice – documents wrongfully obtained might well taint or prejudice the outcome of a legal proceeding. The conduct tends to bring discredit on the legal profession.

[Emphasis added]

92No such admission was made. The only admission with respect to the A&D was that the Lawyer used an altered copy of the A&D for an improper purpose, not that she altered it or caused it to be altered. There was no evidence the Lawyer instructed her legal assistant to alter the A&D or that she knew or suspected the A&D was altered.

93According to the Lawyer, the panel then made an adverse credibility finding based on this error, which permeated its determination of the matters before it.

Law Society’s position

94The Law Society concedes it was “inaccurate” for the panel to say that the Lawyer admitted she deliberately falsified the A&D or caused it to be falsified. It says para 103 of the conduct decision is “poorly articulated”. However, it argues that this misstatement was merely intended to paraphrase the panel’s actual findings based on the ASF and joint document book, which were set out at paras 119-123 of the conduct decision. The Law Society argues that panels are entitled to draw inferences from an ASF as long as they do not contradict the ASF.

95Based on a review of the facts admitted, the Law Society argues the panel could infer that the Lawyer reviewed the altered A&D, and that she altered it or caused it to be altered.

96According to the Law Society, in assessing credibility, it was open to the panel to incorporate the facts relating to the A&D, including the inferences that it drew from them.

Analysis

97It seems clear that the panel erred in stating that the Lawyer admitted to deliberately falsifying or causing to be falsified the A&D documents signed by Client A. The panel’s statement that the Lawyer admitted to falsification was unequivocal and unqualified. It cannot be easily dismissed as merely paraphrasing findings of fact that were made later in the reasons. Those later findings were that the Lawyer used the altered A&D, but not that the Lawyer intentionally altered the A&D to begin with. It is not necessary to address the Law Society’s argument about inferences to be drawn from an ASF because the inference suggested cannot be reasonably drawn from the ASF in this case.

98The question, then, is what is the impact of this error? The misstatement of fact was made in the section of the panel’s reasons titled “Credibility”. It was listed as one of the reasons that the Lawyer was not a credible witness. However, the primary reason that the panel gave for doubting the Lawyer’s credibility was that the Lawyer had drafted misleading and deceptive affidavits. As noted above, this finding is not tainted by error.

99More importantly, this section on credibility in the panel’s reasons was ultimately aimed at assessing the Lawyer’s explanation that she believed her client wanted to “remain alive” and that she believed she was acting in accordance with his putative wishes. The panel did not accept this explanation because it found the Lawyer to be lacking in credibility. But even if one of the bases for the credibility concerns was incorrect, that does not alter the more fundamental point that the Lawyer’s explanation cannot justify her decision to act without the instructions of Client A or Client A’s spouse (who the Lawyer knew was the legal substitute decision-maker). It bears repeating that the Lawyer did not merely initiate the court application and make one court appearance without any instructions; she then went further with multiple attendances before Justice Arell and then Associate Chief Justice Marrocco, not to mention an appeal of both the merits and costs decisions to the Court of Appeal. She did all of this without client instructions. That is the essence of the misconduct at the core of the panel’s reasons.

100It is also significant that in its penalty decision, the panel returned to the issue of the falsified A&D but did not repeat its error. Instead, the panel accurately stated that the Lawyer “admitted, in relation to Client A, the following misconduct: 1. She used a falsified version of Client A’s Authorization and Direction…”. That was the basis on which the Lawyer was sanctioned.

101Accordingly, while we find that while the panel committed a palpable error with respect to its misstatement regarding the falsification of the A&D, we conclude that the error was not an overriding one. The error was largely inconsequential in light of the misconduct at the heart of the panel’s reasons and the panel’s penalty analysis.

Withdrawn allegation in the notice of application re Rule 2.1-1

Lawyer’s position

102The Lawyer submits the panel erred in finding that the use of the altered A&D for an unintended purpose was dishonest, dishonourable, or constituted acting without integrity, contrary to Rule 2.1-1. The Lawyer points to the amended notice of application (NOA), in which that allegation was struck on consent of the parties with respect to allegation 2.

103Allegation 2 in the NOA reads:

Client A had provided the Respondent with an Authorization and Direction to allow her to obtain his health records for an accident benefits claim and/or tort action. On July 9 and/or 17, 2018, the Respondent used, or allowed someone acting on her behalf to use, an altered copy of the Authorization and Direction to request Client A’s health records for an improper purpose. The Respondent thereby:

(a) contravened rule 2.1-1 of the Rules of Professional Conduct; and/or

(b) engaged in conduct that is prejudicial to the administration of justice, or that otherwise tends to bring discredit upon the legal profession, and that therefore constituted professional misconduct.

104The Lawyer argues it was procedurally unfair for the panel to find that she acted in a manner that was dishonest, dishonourable, or without integrity in relation to the use of the altered A&D when that allegation was not before the panel and the Lawyer could not defend herself against it. The Lawyer submits that this improper finding supported the panel’s conclusion that the Lawyer’s misconduct was very serious and deserving of a significant penalty.

Law Society’s position

105The Law Society submits that the panel did not make a formal finding of misconduct for breaching Rule 2.1-1 regarding the use of the altered A&D. Instead, the panel found misconduct with respect to allegation 2(b), which had not been struck. This finding related to conduct prejudicial to the administration of justice or that otherwise tends to bring discredit to the legal profession. It was in this context that the panel discussed the Lawyer’s dishonesty in using the altered A&D.

106The panel did not mention Rule 2.1-1 when discussing the altered A&D.

107In any event, the A&D was part of the constellation of facts relating to the Lawyer’s proceedings to override the wishes of Client A’s family.

Analysis

108As already noted, it was a factual error to state that the Lawyer admitted to altering the A&D or causing it to be altered.

109Separate from the issue of whether the Lawyer altered the A&D, however, is the issue of whether the Lawyer used the altered A&D for an improper purpose. The panel found that the Lawyer did engage in this misconduct and that it was “prejudicial to the administration of justice” and “tend[ed] to bring discredit to the legal profession”, as alleged in 2(b) of the NOA (which allegation had not been struck out). There is nothing in the conduct decision that indicates the panel found that using an altered A&D for an improper purpose was a breach of Rule 2.1-1 (acting dishonourably and without integrity).

110We arrive at this conclusion based on the language the panel used in the part of the conduct decision in which it discussed the use of the altered A&D (titled, “Use of altered document” at paras 119-123); and the fact, as acknowledged at para 119 of the conduct decision, that the Lawyer had admitted to that misconduct.

111Further, in the penalty decision, the panel makes it clear that its finding was based on the filing of an altered document as opposed to making the alteration itself. The panel states at para 79:

We also found that by filing an altered document to obtain medical records to which she was not entitled, the Lawyer acted dishonourably and without integrity. She engaged in conduct prejudicial to the administration of justice, and which tends to bring discredit upon the legal profession. We also found other elements of dishonesty in her conduct.

[Emphasis added]

112It is true that the latter part of the first sentence refers to a finding that the Lawyer acted dishonourably and without integrity, which is not accurate. The panel did not make such a finding in its conduct decision. However, this misstatement does not affect the outcome of this case. Reading the penalty decision as a whole, it does not affect the panel’s analysis of the appropriate penalty or the weighing of the Aguirre factors. The only Aguirre factor that could be affected would be the seriousness of the misconduct. However, even without this consideration, the misconduct – particularly the sustained course of conduct in acting without client instructions – was still properly assessed by the panel as being very serious.

113Indeed, even if the use of the altered A&D did not amount to acting dishonourably and without integrity, it did constitute conduct prejudicial to the administration of justice, and which tends to bring discredit upon the legal profession (as the panel found). Moreover, as the panel noted in para 79 of its penalty decision, there were other elements of dishonesty in the Lawyer’s conduct.

114The panel had concluded that the Lawyer acted dishonourably and without integrity in other ways, for example, in acting without instructions, filing a misleading affidavit, and failing to serve notice on the appropriate respondents. Moreover, there were other serious findings of misconduct, such as acting in a conflict of interest and disclosing client information. As noted at para 82 of the penalty decision, “the nature and totality of the misconduct is very serious and deserving of a significant penalty.” The misstatement noted above does not change that fact.

CUPE abuse of process doctrine

Lawyer’s position

115The Lawyer argues that, contrary to the principes outlined in CUPE, the panel adopted the legal conclusions of the three court decisions related to the underlying events without analysis. According to the Lawyer, these legal conclusions were on questions that were properly within the jurisdiction of the Tribunal.

116Specifically, the Lawyer argues that the panel “accept[ed] and rel[ied] on” the Court of Appeal’s conclusion that the Lawyer “breached the basic principles that apply to the conduct of lawyers, particularly their duty to act honourably.”

117The Lawyer relies on the Tribunal’s decision in Law Society of Ontario v Sherman, 2024 ONLSTH 26. In that case, a single-adjudicator panel considering the application of CUPE concluded that a court finding that a licensee “acted in a conflict of interest and … in a manner ‘prohibited by the applicable rules of professional conduct’” effectively foreclosed the licensee’s defence to the allegation raised against him.

118The Sherman adjudicator raised the concern that this kind of a finding “could pre-empt the panel hearing the conduct application on the very issue it is asked to decide”, i.e., whether the licensee committed professional misconduct. The adjudicator held that the CUPE doctrine was not applicable to the finding that the licensee acted “in a manner that ‘was prohibited by the applicable rules of professional conduct.’”

Law Society’s position

119The Law Society argues that the three related court decisions turned on whether the Lawyer’s conduct harmed the administration of justice and whether she acted honourably and with integrity. It says these decisions are binding.

120According to the Law Society, CUPE doctrine does not just apply to findings of fact but to findings of mixed fact and law, decided issues, and conclusions as well. The harm in relitigating these elements is illustrated in this case: the Lawyer is asking us to find that the courts were wrong on key issues before them. This undermines the administration of justice.

121The Law Society points to the Lawyer’s characterization of the court findings as “legal conclusions”. It says they are, in fact, findings of mixed fact and law and not pure conclusions of law, which may otherwise preclude the application of CUPE.

122In any event, the Law Society submits that if they are legal conclusions, they are binding on the Tribunal as a matter of precedent, which is different from, for example, the decision of another administrative tribunal.

Analysis

123For the reasons below, we find that the panel did not err in relying on the conclusions of the courts in the related proceedings.

124In CUPE, the Court explained the rationale for preventing litigants from relitigating findings in related proceedings for being an abuse of process at para 51:

Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of

itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[Emphasis added]

125The Court stated that relitigation should be avoided “unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.” In terms of what would constitute such circumstances, the Court gave the following examples at para 52: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.

126With respect to what kinds of circumstances would create unfairness if there were a bar against relitigation, the Court gave the following examples at para 53: (1) if the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable; (2) an inadequate incentive to defend; (3) the discovery of new evidence in the appropriate circumstances; or (4) a tainted original process. The Court concluded that the bar against relitigation – whether by applying issue estoppel, abuse of process or collateral attack doctrines – had to be balanced against fairness to a particular litigant.

127In Law Society of Ontario v Piersanti, 2018 ONLSTA 10 (affirmed by the Divisional Court, 2019 ONSC 1826), the appeal panel considered CUPE and the circumstances in which fairness might require allowing parties to the Tribunal to relitigate the same issues already decided in another forum:

• Where the earlier proceeding was itself unfair or it would be unfair to apply the findings outside the context of the party’s role in that proceeding.
• Where the financial or other stakes were relatively minor in the prior adjudication, for example where its purpose, downside risk or the upside benefit did not present a sufficient incentive for a party to vigorously litigate the point in dispute.
• Where it is unclear (either at the outset of the Tribunal hearing, or at all) whether the issue in the prior hearing was precisely the same, so that there was a precise connection between the previous finding and the allegations in the instant application.
• Where an issue, or a particular aspect of an issue, was expressly left open by the first tribunal to be decided elsewhere.
• Where the applicable legislation contemplates parallel proceedings.

128In this case, the panel relied on the conclusions at para 35 of the Court of Appeal decision, which the Lawyer argues was improper without its own consideration of the issues. The Court of Appeal stated,

[35] In my view, the facts of this case amply establish that Ms. Masgras’ actions “seriously interfered with the administration of justice.” She acted without instructions. She acted in a manner that was directly contrary to the wishes of [Client A’s] family. And she did so when one of the most difficult, emotional, and personal of decisions was being undertaken by them. Further, Ms. Masgras’ actions potentially interfered with the ability of another individual to receive what might well have been a life-saving organ transplant. Ms. Masgras misused the court process and, in doing so, she brought the integrity of the administration of justice into disrepute. On this point, I refer to rule 2.1-1 of the Rules of Professional Conduct which reads:

A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

129After quoting from this paragraph of the Court of Appeal decision in the conduct decision, the panel stated:

[69] The Court concluded that in taking these unauthorized steps, the Lawyer breached the basic principles that apply to the conduct of lawyers, particularly their duty to act honourably.

[70] We accept and rely on these conclusions, as well as the on the reasons of Arrell J. and Marrocco J., and find that the allegation of acting without instructions has been proven.

130In our view, it was entirely proper for the panel to accept and rely on the Court’s conclusions. These were findings of fact and findings of mixed fact and law, both of which engage the abuse of process doctrine: Gornergrat Developments Inc. v Lalonde et al, 2010 ONSC 5522 at para 36. Aside from the excerpt from the Court of Appeal decision quoted above, the related court decisions made no other mention of the Rules or the standard applicable to lawyers, only to say that the Lawyer acted without instructions. In our view, the statements of the Court that the panel relied on were not legal conclusions.

131For the reasons set out in CUPE, it would “undermine the credibility of the entire judicial process” had the panel made findings contrary to the Superior Court and the Court of Appeal.

132The Court of Appeal and the Superior Court were forums in which there was a “full and robust response” to the allegations. The stakes were high and there was therefore ample incentive for the Lawyer to fully respond to the allegations being advanced against her. There is no suggestion that the process was flawed or procedurally unfair. There is no new evidence that would call into question the courts’ conclusions. The issue in the costs appeal was the same as the issues before the Tribunal: the propriety of the Lawyer’s conduct. In other words, there are no fairness concerns that would militate against applying the abuse of process doctrine in this case.

133The Lawyer has not put forward any reason that would trigger an exception to the application of the abuse of process doctrine. Instead, the Lawyer argues that the conclusion that she failed to act honourably was not a finding of fact or mixed fact and law, but a legal conclusion that lay within the exclusive jurisdiction of the Tribunal.

134In aid of this argument, the Lawyer relies on Sherman. In that case, an Associate Judge had made findings that a licensee had acted in a conflict of interest and in a matter that was “prohibited by the applicable rules of professional conduct”. The Tribunal adjudicator dealing with the issue concluded that the abuse of process doctrine in CUPE applied to the finding that the licensee acted in a conflict of interest (at para 45). He held that the licensee was not at liberty to relitigate that issue. However, the adjudicator was also careful to conclude that the abuse of process doctrine did not apply to the ultimate conclusion that the licensee had acted in a manner “prohibited by the applicable rules of professional conduct” (at para 46). That was a matter for the Tribunal, and not the courts, to decide.

135We do not see the panel’s reasons in this case as running counter to this approach. The panel quoted from the Court of Appeal’s findings that the Lawyer acted “without instructions… in a manner that was directly contrary to the wishes of [Client A’s] family”; that she “did so when one of the most difficult, emotional, and personal of decisions was being undertaken by them”; and that by doing so, the Lawyer “seriously interfered with the administration of justice”. These were findings of fact and findings of mixed fact and law.

136Given the applicability of CUPE, it would have been improper for the conduct panel to engage in its own determination of whether the Lawyer seriously interfered with the administration of justice or brought the integrity of the administration of justice into disrepute. Those questions had already been decided.

137Based on those findings, the panel properly found a breach of the Rules and concluded that the Lawyer engaged in professional misconduct. This was not a conclusion that the Court of Appeal reached. While the Court cited the relevant Rule in making its findings, the Court stopped short of pronouncing on whether the Lawyer breached the Rules. Instead, this is a conclusion that the panel reached on its own. It followed naturally from the findings of fact and mixed fact and law that the Court of Appeal had made; the panel rightfully accepted and relied on them. Therefore, as a practical matter, it was not necessary for the panel to go on at length about the reasons why the findings supported this conclusion when the reasoning was largely self-evident. The panel appropriately applied the CUPE abuse of process doctrine to the ultimate conclusion that lay within its own jurisdiction.

138Accordingly, we would dismiss this ground of appeal.

Fitness of nine-month suspension

Lawyer’s position

139The Lawyer argues that a nine-month suspension was the result of the panel’s errors: that she acted dishonourably and without integrity, and that she deliberately falsified the A&D document. Absent these errors, the penalty would have been less severe.

140According to the Lawyer, it is undisputed that a nine-month suspension would adversely affect the firm’s approximately 1,800 clients and 50 employees (including 12 other lawyer licensees who were not involved in the underlying events). Because the Lawyer operates her firm as a professional corporation, a suspension of her licence is in effect a suspension of the operations of her entire firm (under the terms of the professional corporation’s Certificate of Authorization issued by the LSO). The Lawyer submits that the panel erred in failing to consider as a mitigating factor (1) the disproportionate effect of a suspension on the proprietor of a professional corporation in contrast to a partner in a law firm, and (2) the consequential effect of a lengthy suspension on third parties and the public.

141The Lawyer submits that, since LSO By-Laws and rules have not been reconsidered to ensure clients and colleagues of lawyers practising through professional corporations do not suffer these adverse consequences, the Tribunal ought to consider this a mitigating factor in assessing penalty.

142In response to the Law Society’s argument in its cross-appeal that revocation is the necessary penalty in this case because it involves proven dishonesty, the Lawyer submits that this position runs counter to Tribunal jurisprudence. She points to Law Society of Ontario v Mobberley, 2024 ONLSTH 15, upheld on appeal, 2025 ONLSTA 2, in which the panel rejected the argument that misleading the court and filing a false affidavit led to presumptive revocation, despite those being instances of proven dishonesty. The Lawyer argues the Law Society has not identified an error in principle.

143Considering all of the circumstances, the Lawyer requests an order setting aside the suspension order and ordering instead: (1) a reprimand and maximum fine of $100,000; (2) in the alternative, a lesser suspension; or (3) in the further alternative, a new penalty hearing.

Law Society’s position

144The Law Society submits that the Lawyer has not shown an “error in principle” or that the penalty was “clearly unfit”, which is the high threshold to surpass on a penalty appeal.

145The Lawyer did not lead evidence regarding prejudice to her clients and the panel made no finding that the firm’s clients would experience a severe negative impact. There is no evidence that she cannot make arrangements to address a future suspension, whether with her current associates or other firms.

146The Law Society argues that the features of the Lawyer’s current practice are completely extraneous to her misconduct and to her circumstances at the time of the misconduct. They should not affect the type of penalty she receives.

147In a cross-appeal, the Law Society urges us to find that the panel erred in principle in rejecting the Law Society’s argument that the Lawyer’s licence should be revoked. It says the hearing panel applied the wrong approach to the issue of licence revocation, whether or not it was the presumptive penalty (which the Law Society had argued for in the proceedings below). The key question was whether her misconduct amounted to proven dishonesty that undermines the public’s confidence that each member of the legal profession is “a person of unquestionable integrity, probity and trustworthiness”. Requiring proof of a “complete loss of integrity”, financial gain, or malevolence misstates the test.

148The Law Society argues that the governing principles, as set out in Bolton v Law Society, [1993] EWCA Civ 32, and other Tribunal jurisprudence compelled a penalty of revocation in light of the panel’s findings of serious dishonesty.

Analysis

149The parties agree that for us to overturn the penalty decision of the hearing panel, it must be demonstrated that the hearing panel made an error in principle or that the penalty was clearly unfit. An unfit penalty is one that is manifestly deficient or excessive, and is a substantial and marked departure from penalties in similar cases: Khan v Law Society of Ontario, 2022 ONSC 1951 at para 77.

150We will first address the Law Society’s argument in its cross-appeal that the panel ought to have revoked the Lawyer’s licence.

151As previously noted, despite its seriousness, the panel did not consider the misconduct to have the same degree or register of seriousness that would demand revocation as a presumptive penalty. It determined that revocation was not a starting point and that a lengthy suspension would meet the objectives of a penalty order. The panel then engaged in an analysis of the Aguirre factors, which guide the Tribunal in its exercise of discretion on penalty. Based on a weighing of these factors, it determined that a nine-month suspension was appropriate.

152We do not see any error in principle in this approach. The parties agree that the misconduct at issue in this case does not fall within any of the established categories for which presumptive revocation applies; for example, fraud or misappropriation of client funds.

153The categories of cases in which the presumptive penalty is revocation is limited, and this Tribunal has cautioned against its undue expansion: Law Society of Ontario v Manilla, 2021 ONLSTA 25, Law Society of Ontario v Papasotiriou-Lanteigne, 2025 ONLSTH 12 at paras 23-25.

154For revocation to be the presumptive penalty, the conduct at issue must be of a different register or of a different quality than other lawyerly misconduct such that it raises the question of whether, “in the public interest, the profession can accept the continued licensing of a person who has shown himself to be willing to participate” in such conduct, in the sense of having the moral character to continue to be in the position of trust involved in being a licensee: Law Society of Upper Canada v Abbott, 2017 ONCA 525.

155Indeed, not every instance of proven dishonesty will lead to revocation as a starting point. There is a gradient of dishonest behaviour and it is for the panel assessing penalty to determine whether the dishonesty rises to the level described in Abbott: Law Society of Ontario v Valdes Trigo, 2025 ONLSTH 115 at para 51.

156The panel in this case determined that it did not and imposed a lengthy suspension instead. We do not consider the nine-month penalty the panel imposed to be manifestly deficient or a marked departure from other cases. We do not see this as a case “crying out” for revocation.

157To be clear, there are several paths to revocation. While these are not watertight compartments, hearing panels have ordered revocation when one of the following circumstances are present: (1) conduct that falls within a category of misconduct for which the presumptive penalty is revocation absent exceptional circumstances; (2) intentionally dishonest conduct that rises to the level described in Bolton; (3) the weighing of the Aguirre factors that lead a panel to conclude that the profession cannot accept the continued licensing of the licensee, given the totality of the circumstances; and (4) a finding of ungovernability.

158The panel in this case noted that it had not been pointed to any “useful precedents” in terms of the appropriate length of suspension because, given the unique circumstances of the case, there were no analogous cases. It reviewed Law Society of Ontario v Mazinani, 2021 ONLSTH 72, in which that panel imposed a six-month penalty for a number of serious instances of misconduct including failure to serve, breach of confidentiality, failing to comply with a court order, misleading the court and opposing counsel, failing to act with integrity, and threatening a Law Society complaint against opposing counsel to gain a benefit for her brother/client. The panel in this case determined that the Lawyer’s misconduct was more egregious and deserving of sanction than in Mazinani.

159The panel also reviewed Law Society of Ontario v Majid, 2021 ONLSTH 51. The panel in that case imposed a nine-month suspension based on a joint submission by the parties. The conduct involved multiple instances of misconduct affecting one client (conflicts of interests, being used to facilitate and failure to guard against fraud, dishonesty, misleading clients, etc.). The lawyer had expressed sincere regret and the behaviour appeared to be out of character.

160The panel in this case found that, like in Majid, a nine-month suspension was warranted.

161In the circumstances, it was not an error to decline to revoke the Lawyer’s licence. Presumptive revocation did not apply, Bolton was not engaged, there was no finding of ungovernability, and the Aguirre factors, along with the case law, led the panel to determine that a nine-month suspension was appropriate. We find that the length of the suspension is not unfit and that there was no error in principle in the panel’s penalty reasons.

162We turn now to the Lawyer’s argument that, but for the errors made by the hearing panel, it would not have imposed a nine-month suspension.

163With respect to the Aguirre factors, the panel correctly noted that the “nature and totality of the misconduct” was “very serious and deserving of a significant penalty.” It indicated the Lawyer had a clean prior disciplinary record, but also noted her lack of true remorse. The panel considered her co-operation with the Law Society to be a mitigating factor and her persistence in her misconduct to be an aggravating factor. It also properly considered the impact of her actions on others. We see no error in principle in the panel’s approach as outlined.

164The panel also considered the Lawyer’s argument that her business structure should be a mitigating factor in the penalty consideration. It rejected that the structure of a lawyer’s business “should dictate or control the penalty imposed” saying,

A suspension of the Lawyer’s licence will certainly and unfortunately affect her business and livelihood (as is the case with all suspensions). However, we do not consider this should be the determinative consideration in assessing penalty.

165We see no reversible error in the panel’s reasoning. While we acknowledge the Lawyer’s submission that she is not advancing this as a determinative factor, but merely a relevant one, we do not see this as a basis to interfere with the penalty in this case, particularly given the absence of evidence regarding prejudice to the Lawyer’s clients and staff. The panel was alive to the manner in which the Lawyer had structured her practice. It nevertheless decided that a nine-month suspension was appropriate.

166We note that even where a licensee has not structured her firm as being based on a professional corporation, a suspension will often have significant impacts on third parties, including all those who depend on the licensee’s practice for their livelihood. That impact is an unfortunate collateral consequence. But its existence cannot override other factors or the overriding goal of public protection and therefore does not necessarily compel a lesser penalty.

CONCLUSION

167The panel orders:

1. The Lawyer’s appeal is dismissed.
2. The Law Society’s cross-appeal on penalty is also dismissed.
3. If the parties cannot agree on costs, the Law Society may file written submissions of no more than four single-spaced pages, apart from a bill of costs and any authorities, within 14 days of the date of these reasons.
4. Any responding submissions should also be in writing, no more than four single-spaced pages in length, and will be filed within 28 days of the date of these reasons.