LAW SOCIETY TRIBUNAL

APPEAL DIVISION

Date: May 1, 2026

Tribunal File No.: 25A-018

BETWEEN:

Law Society of Ontario

Appellant

• and -

Tina Shah Butler

Respondent in appeal

Before: Karen Hulan (chair), Annamaria Enenajor, Margaret Leighton, Barbara J. Murchie, Geneviève Painchaud

Heard: December 10, 2025, by videoconference

Appearances:

Dawood Nasir and Kristina MacDonald, for the appellant

Lisa Freeman, for the respondent in appeal

Summary:

BUTLER – Appeal – Licensing – False or Misleading Representation in License Application – Good Character - The Law Society appealed the decision of the hearing panel which found that s 8(2) did not bar licensing and found that the Lawyer Applicant was of good character – The appeal panel held that the hearing panel made errors of laws in reaching its conclusions by misinterpreting and misapplying s 8(2) of By-Law 4, by failing to consider evidence as a whole, by improperly assessing the Lawyer Applicant’s credibility and by requiring a greater standard of proof – The panel set aside the hearing panel’s decision and found Lawyer Applicant did not meet the good character requirement for licensing – The parties were invited to make written submissions on costs.

REASONS FOR DECISION

INTRODUCTION

1Karen Hulan (for the panel):– The Law Society appeals the decision that the Licensee applicant, Tina Butler, is presently of good character and therefore meets the requirement for issuance of a licence to practise law.¹

2The Law Society submits that the hearing panel made several errors of law in reaching its decision and that considered in its totality, the decision is unreasonable.

3We allow the appeal for the reasons that follow.

BACKGROUND

4This is one of many good character cases arising out of the bar exam cheating scandal when licensing exams were conducted virtually during the pandemic. The Law Society later became aware that some students had access to prohibited study materials and answer keys.

5The Law Society retained a forensic testing company to review exam results. The company concluded that there was a high statistical probability that some results were obtained through cheating. Ms. Butler’s exams results were one of those flagged. The Law Society initiated an investigation and determined that Ms. Butler was part of a study group called NCA Exam Guru (NEG), which had access to prohibited materials.

6The Law Society alleged that Ms. Butler cheated on her November 2021 solicitor exam. There was a dispute about whether prior to the hearing, the Law Society alleged that she also cheated on her June 2021 barrister exam. The Law Society also alleged that Ms. Butler made five misleading representations during its investigation.

7Ms. Butler denied all allegations.

Hearing panel reasons

8The hearing panel found that Ms. Butler did not cheat on the November 2021 exam.

9The hearing panel prevented the Law Society from making submissions at the hearing about the June barrister exam as it concluded that Ms. Butler did not have notice of that allegation. It also concluded that there was insufficient evidence that she cheated on the June exam: evidence was limited to the score; investigation was limited to the November solicitor exam; and there was a no forensic report addressing Ms. Butler’s June exam.

10The panel found that the results of the forensic report for the November exam as they pertained to Ms. Butler were “compelling”. It was satisfied that it was “highly unlikely” that Ms. Butler did not have access to the prohibited material but it concluded that Ms. Butler was not aware that she had been exposed to the material. The hearing panel reached that conclusion noting the forensic report’s caution not to presume cheating “purely on the basis of the statistical results”. The panel stated that the report recommended that “other forms of evidence that confirm or explain the statistical observations” be sought or obtained.²

11In the context of addressing the November exam, the hearing panel noted that the Law Society bore the onus of establishing that Ms. Butler cheated.³ The panel accepted Ms. Butler’s evidence that there were other explanations for improvement of her November solicitor exam results over previous exam attempts, including that demands in her personal life had eased, she was familiar with questions from the previous exam attempts and exposure to prohibited exam material through NEG workshops and pre-recorded lectures.⁴ It found that the Law Society did not provide compelling evidence, other than the forensic report, that outweighed those alternative explanations. As a result, the Law Society did not establish that it was more likely than not that Ms. Butler cheated on the November exam. The Law Society did not provide the required confirmatory evidence of cheating.⁵

12The panel concluded that four of the five alleged misrepresentations or omissions made during the investigation were not deliberate misrepresentations under s 8(2) of By-Law 4. That section bars entry to the profession where a deliberate misrepresentation is made on or in connection with a licensing application. The panel accepted the alternative explanations provided by Ms. Butler.

13The hearing panel concluded that one of the five representations or omissions made by Ms. Butler during the investigation amounted to an inaccurate statement. The following is the context in which the “inaccurate statement” was made.

14Ms. Butler denied recalling previous statements she made to other NEG students about investigations in the group chat. After the Law Society notified Ms. Butler that her application was placed in abeyance pending assessment, she told other NEG participants on a WhatsApp group chat to provide generic answers to the Law Society during its investigation. She then twice claimed that she did not recall making such a statement: during her interview with the Law Society, and in a written response to Law Society questions.

15The panel rejected that Ms. Butler did not recall making those statements. It cited evidence of Ms. Butler’s group chat messages where that advice was given on February 26, 28, and March 1, 2022; and that on one of those dates, Ms. Butler reiterated the same advice to the chatgroup. The panel enumerated five reasons why it did not accept that Ms. Butler did not recall telling others to provide generic answers.⁶

16Ms. Butler testified at the hearing and was cross-examined. The panel considered her to be “credible and straightforward”. Her testimony was thoughtful and thorough. She was not evasive. She provided reasonable explanation for previous exam results.⁷

17Although it rejected Ms. Butler’s representation that she did not recall making the statement, the panel concluded that the statement was more appropriately characterized as an “inaccurate statement” rather than a false or misleading statement because it was not made with the intent to deceive. Since the statement was made without the intent to deceive, it reasoned, the statement was not a “deliberate misrepresentation” under s 8(2) of By-Law 4.

18The panel addressed the importance of candour and honesty in the licensing application process but described Ms. Butler’s statement as not demonstrating a “significant lack of candour.” It did, however, conclude that the statement reflected on her character. It identified eight reasons why s 8(2) did not apply, and why it could exercise its discretion to proceed with the Armstrong good character analysis.⁸ The first of eight reasons was that Ms. Butler did not intend to purposefully mislead the investigator when she said that she did not recall making the earlier statements.⁹

19The panel considered the nature and duration of the misconduct. It found that Ms. Butler did not admit to providing that advice, and that she denied knowledge that others provided the same advice.¹⁰ It found that this called into question her integrity and candour. It described her conduct as misconduct¹¹ and even “somewhat more serious misconduct”.¹²

20The panel found that Ms. Butler’s expressions of remorse, rehabilitative efforts and subsequent misconduct were factors indicative of good character.

21When weighing the Armstrong factors, the panel stated its view that “the most significant factors are the seriousness and nature of the misconduct (which we have assessed as low), the rehabilitative efforts, and the conduct since the misconduct.”¹³

22The panel concluded that Ms. Butler was presently of good character.

JURISDICTION ON APPEAL

23This is an appeal by the Law Society pursuant to s 49.32 of the Law Society Act, RSO 1990, c L.8 (the Act), and as a result it may appeal “only on a question that is not a question of fact alone.” (s 49.33(2))

24The Law Society submits that that this appeal raises the following issues and errors of law, namely, that the panel:

• erred in law in the interpretation and application of s 8(2) of By-law 4;

• erred in law by failing to consider/misapprehending relevant evidence;

• erred in law by failing to consider the evidence as a whole, applying the wrong standard of proof, and applying the wrong legal test for credibility;

• erred in law by deny procedural fairness; and

• erred in law in its consideration of the June 2021 exam.

GROUNDS OF THE APPEAL AND ISSUES[^14]

25The appeal raises the following issues:

1. Did the hearing panel err in its interpretation and application of s 8(2) of By‑Law 4? Does Ms. Butler meet the good character requirement for licensing?

2. Did the hearing panel err by failing to consider the evidence as a whole, and by applying the incorrect standard of proof?

3. Did the hearing panel deny the Law Society procedural fairness?

STANDARD OF REVIEW

26The standard of review on appeal is correctness for questions of law; and, palpable and overriding error for questions of fact and questions of mixed fact and law, and where the legal principle is not readily extricable.¹⁵ However, as stated above, the Law Society may not appeal on a question of fact alone. The parties disagree on the proper characterization of the grounds of appeal and as a result, they largely disagree about which standard of review applies to issues in this appeal.

27The Law Society submits that all grounds of appeal raise questions of law and therefore the standard of review is that of correctness.

28Ms. Butler agrees that correctness is the standard of review only if we find that there was a breach of procedural fairness; however, she submits that the interpretation and application of section 8(2) raises questions of mixed fact and law which is subject to the palpable and overriding error standard. It is her position that all remaining grounds of appeal are appropriately characterized as questions of fact which the Law Society cannot appeal.¹⁶

29We address the appropriate standard of review below for the issues we determine in this appeal.

ANALYSIS

Misinterpretation and misapplication of section 8(2) of By-Law 4

Section 8(2)

30Section 8(2) of By-Law 4 provides:

An applicant who makes any false or misleading representation or declaration on or in connection with an application for a licence, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for the issuance of any licence under the Act.

(emphasis added)

31The Law Society submits that to establish a breach of s 8(2) it need only prove that Ms. Butler knowingly made a false or misleading representation on or in connection with an application. “Knowingly” includes making a false or misleading representation through recklessness or wilful blindness. There is no requirement that a statement be made with the intent to deceive, as the panel required; inserting this additional requirement was an error of law. That is, it was an error of law to find that Ms. Butler did not breach s 8(2) when she said that she did not remember that she counselled other candidates to provide generic answers to the Law Society. The panel had no discretion to proceed to a good character analysis.

32Ms. Butler submits that the panel found that she had made an inaccurate statement, not a deliberate misrepresentation. It did not find that she lied. As a result, the statement was not caught by s 8(2) and it was appropriate for the panel to proceed with a good character assessment. Moreover, the misrepresentation did not unequivocally undermine her good character.

33Ms. Butler says that if an error was made, then it was an error of mixed fact and law to which the standard of review is palpable and overriding error. She submits the panel’s decision was not clearly wrong, unreasonable, or unsupported by the evidence.

34We agree with the Law Society’s submission that a non-existent legal requirement of subjective intent to mislead was applied to the s 8(2) analysis. This was an error of law.

35The term “deliberate misrepresentation” does not appear in s 8(2) but has been explained in case law to include statements or omissions that lack candour, are made to deliberately mislead, are false and misleading, or are deliberate inaccuracies.¹⁷ Where a false or misleading representation is made on an application, during an investigation, or at a hearing, and it was made knowingly, recklessly or with wilful blindness, then s 8(2) is engaged and the requirements for licensing are not met.¹⁸ Again, this applies to inaccurate statements. Making a statement that the person knows is incorrect is deliberate misrepresentation. An intent to mislead is not required for there to be a deliberate misrepresentation.

36The panel enumerated several reasons why it did not accept Ms. Butler’s evidence that she did not recall encouraging others to be generic in their responses to investigation:

It was inaccurate for Ms. Butler to represent in August 2022 that she did not recall being told to provide generic answers. In reaching this conclusion we have considered the following factors:

• Ms. Butler’s involvement in at least one exchange advising other to providing generic answers.

• The repeated and consistent messaging from others about providing generic answers in the Random Select WhatsApp group.

• Ms. Butler’s regular and consistent engagement in the Random Select WhatsApp group in the February 26 and March 1 timeframe.

• The fact that Ms. Butler did not say in her March 2024 interview that she did not recall the exchanges about providing generic answers when confronted with those messages.

• Ms. Butler’s admissions in her March 2024 interview that at the time of these exchanges she had started to worry that perhaps NEG had been involved in some kind of wrongdoing.¹⁹

37Ms. Butler did not simply make an inaccurate statement.

38By concluding that Ms. Butler recalled making the statement to the chatgroup, despite her claim that she did not recall doing so, the panel in fact found that Ms. Butler knowingly misrepresented the truth. The term “deliberate” may appear to import deceptive intent into the analysis, but it does not. It does not matter why she made the misrepresentation; rather, what matters is that she knowingly made it.²⁰

39Describing a statement as “inaccurate” only means the statement is imprecise or incorrect.²¹ The panel concluded that it was more than simply imprecise or incorrect and that Ms. Butler was not sufficiently candid in making the statement. The panel found that she knew that she made an untrue, imprecise or incorrect statement, made it anyway and did not later expand upon it or clarify it. This was more than imprecision and more than mere inadvertence.²²

40The panel in Levinson concluded that there is discretion to consider inaccuracies in an application where relevant to the assessment of the applicant’s character”.²³ However, the present case is factually different than Levinson. In Levinson, it was determined that the licensing application was inaccurate, but not deliberately so.²⁴ A good character analysis was therefore undertaken. In contrast, the panel here found that Ms. Butler was aware that she was making an inaccurate statement when she did so.

41Ms. Butler’s misconduct was described as “inappropriate”²⁵ and “somewhat more serious misconduct” ²⁶ and under the good character analysis it was described as less serious.²⁷ These descriptions are irrelevant to a s 8(2) analysis. Nonetheless, the panel found that Ms. Butler’s statement called into question her integrity and candour, that it undermined the Law Society’s ability to vet candidates and it undermined the public’s confidence in the profession.²⁸

42Underlying section 8(2) is the importance of an applicant being open, transparent, and making full and frank disclosure.²⁹ Candour lies at the heart of a licensing application both for the effective operation of a self-reporting licensing regime and to ensure good character. It is a quality or action of being open, straightforward and honest. It has been described as “an important badge of an applicant’s good character.”³⁰ Candour does not exist on a continuum and is not measured by degree. A statement is either made candidly, or it is not. The panel concluded that it was not, although it described her inaccurate statement as not demonstrating a “significant lack of candour”.³¹ In our view, this mischaracterizes the knowing misrepresentation made in connection with her licensing application.

43There is discretion to engage in a good character analysis for false or misleading statements that are not made on or in connection with an application³² but Ms. Butler’s statement was made in connection with licensing and therefore this analysis was not available to her.

44Ms. Butler submitted that the s 8(2) ground of appeal is not a question of law but rather a question of mixed fact and law for which standard of review is that of palpable and overriding error. We disagree.

45An intent to deceive was imported into the s 8(2) analysis. This was an error of law. Although the panel labelled the issue as a “misstatement or inaccuracy”, its reasons describe Ms. Butler as knowingly misrepresenting her recollection. That misrepresentation was made in connection with an application for licensing and therefore her admission to the profession is barred by s 8(2).

46Given that the hearing panel found that Ms. Butler represented that she did not recall despite that she did recall, there was a deliberate misrepresentation by Ms. Butler. Accordingly, we find that Ms. Butler breached s 8(2) and we substitute our decision for that of the panel. Because s 8(2) is engaged, Ms. Butler is deemed not to have met the requirements for licensing.

47While it was open to the panel to make good character findings for the purpose of any future attempt to be licensed, any finding of good character could not result in licensing from this proceeding. The matter was already determined by s 8(2). Ms. Butler knowingly made a statement that was incorrect. The statement was made in connection with her licensing application. Once that finding is made, the hearing panel had no discretion and the application had to be dismissed.³³

48For these reasons, the panel’s conclusion that Ms. Butler meets the good character requirement for licensing is set aside.

Failure to consider the evidence as a whole, and applying the wrong standard of proof

49The Law Society alleges two errors in law by the hearing panel:

• by failing to consider/misapprehending relevant evidence; and

• by failing to consider the evidence as a whole, applying the wrong standard of proof, and applying the wrong legal test for credibility.

50It is useful to begin with an understanding of what was in issue.

51There was significant agreement between the parties. Ms. Butler acknowledged, and the hearing panel accepted, that Ms. Butler very likely had pre-knowledge of the answers contained in the Braindumps examined in the Caveon Report. The panel identified the issue as whether or not Ms. Butler knowingly had access to the prohibited material. It stated:

Given the results of the Caveon Report, it seems highly unlikely that Ms. Butler did not have pre-knowledge of the answers in the Braindumps. Ms. Butler acknowledges as much. The question is whether Ms. Butler knowingly had access to prohibited material prior to or during the exam. She contends she did not and reasons that she must have been “fed” the answers during the NEG workshops and lectures under the guise of practice questions. We agree this is possible and that it is not a foregone conclusion that she knowingly cheated based solely on the results of the Caveon Report.³⁴

52Having accepted that Ms. Butler had access to prohibited material, the question became how access had been obtained. Addressing the “how” question was central to the question of knowing, rather than inadvertent, access to prohibited material.

53Ms. Butler’s position was that she was “fed” actual answers under the guise of practice questions rather than having used an answer key or cheat sheet. Ms. Butler offered no other suggestion of how she could have unknowingly obtained access to prohibited material.

54The hearing panel conclusion on cheating was as follows:

The Law Society has not established that Ms. Butler knowingly used prohibited material prior to or during the November 2021 solicitor exam. It has not provided compelling evidence beyond the Caveon Report which, on its own, is insufficient to establish that Ms. Butler cheated. Accordingly, we find on a balance of probabilities, based on all the evidence presented, including Ms. Butler’s testimony before us, that Ms. Butler did not cheat on the November 2021 solicitor exam.³⁵

The questions of law

55The Law Society alleges errors of law citing the following authorities.

Considering evidence as whole

56In Canada (Director of Investigation and Research) v Southam Inc.,³⁶ Justice Iacobucci, for the court, held that:

If the Tribunal did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law. Similarly, if the Tribunal considered all the mandatory kinds of evidence but still reached the wrong conclusion, then its error was one of mixed law and fact.

57The Law Society submits that the hearing panel ignored items of evidence that it was required to consider and that this is not merely a case of coming to the wrong conclusion having considered all the mandatory kinds of evidence.

58In R. v J.M.H.,³⁷ Justice Cromwell held for the court that, “The principle is that it is an error of law to subject individual pieces of evidence to the standard of proof … the evidence must be looked at as a whole….”

59In R. v Uhrig,³⁸ the Ontario Court of Appeal observed that:

Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction.

60In Finklestein v Ontario (Securities Commission),³⁹ Justice Nordheimer, for the Divisional Court, held similarly:

… in terms of basic principles, conclusions are to be drawn from the whole of the evidence. Each piece of evidence is not to be viewed in isolation from the other evidence. Rather, the evidence in total is to be examined and weighed in reaching a conclusion.

61The Law Society submits that the hearing panel erred in law by failing to look at the evidence as a whole and by subjecting one aspect of the case to the standard of proof.

Credibility in light of other evidence

62In respect of credibility, the court in Taylor v Canada (Attorney General),⁴⁰ observed that “…courts have learned that demeanour, taken on its own is not a reliable way of assessing the credibility of any witness” and that “the circumstances, conditions, consistency or lack of it with other evidence should be included as part of the analysis.”

63In R. v Kiss,⁴¹ Justice Paciocco cited Faryna v Chorny, 1951 CanLII 252 (BC CA), with approval for the proposition that:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such cases must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

64The Law Society submits that the hearing panel erred in law by failing to consider whether Ms. Butler’s evidence was in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

65Ms. Butler’s position is that there was no error of law and that the Law Society simply disagrees with the hearing panel’s assessment of the evidence and that, as such, the Law Society is precluded from raising this ground on appeal.

The parties’ positions

66The Law Society submits that the hearing panel was required to consider whether Ms. Butler’s evidence was consistent with other evidence. It did not do that and instead considered each piece of circumstantial evidence separately. This was an error of law according to the Law Society.

67The Law Society points to the volume of circumstantial evidence in this case and submits that it is more likely than not that Ms. Butler knowingly cheated. That evidence includes that this was Ms. Butler’s last permitted attempt at writing the solicitor exam; she participated in NEG and its social media groups at the time that the prohibited material was distributed; she wrote the exam shortly after the material was distributed; her exam results were vastly better than they had been on previous attempts; and, at the very least it would have been evident to her upon writing the exam that she had been previously provided the cheating keys.

68The Law Society acknowledges that deference is generally owed to a hearing panel on findings of credibility; however, in this instance it says that the hearing panel did not weigh Ms. Butler’s evidence against the totality of the evidence which supported the conclusion that she cheated. A practical and informed person would have concluded that Ms. Butler’s explanation was highly improbable because:

• she matched 112 of 113 correct and incorrect answers from the materials;

• it was agreed that studying together would not have resulted in this extreme degree of similarity;

• there was no evidence that she was provided questions and answers at workshops;

• the workshop concluded three days before the first sitting of the exam; and

• some of the prohibited material (Braindumps) was shared the day after the first exam and before she wrote the exam.

69The Law Society submits that despite all of the above, the hearing panel required evidence confirming the results of the forensic report. In other words, despite the report’s conclusion that there was a high statistical probability of cheating (one in over a trillion) and all other circumstantial evidence, the hearing panel found that there was no direct evidence of cheating. It submits that requiring direct evidence of cheating was an error. First, the forensic report did not state that confirmation was required. Second, and more importantly, the Law Society need only prove allegations on a balance of probabilities. By requiring direct evidence of cheating, the hearing panel imposed a greater standard of proof than required. This also was an error of law.

70Ms. Butler submits that there was no error. The hearing panel considered the forensic report and concluded that there were other explanations for its compelling results, other than Ms. Butler having cheated. The panel accepted that Ms. Butler was unknowingly exposed to the prohibited content when she attended workshops before the exam.

71Ms. Butler submits that the panel made a number of findings of fact to support its conclusion that the Law Society had not established cheating on a balance of probabilities. Those findings including accepting that Ms. Butler was unknowingly exposed to prohibited exam content; her test results were not identical to anyone else’s; there was no evidence that she received the prohibited exam content; she was not implicated directly (compared to other candidates who were); she had already taken the exam three times and was therefore familiar with exam content; she was not included in the list of 51 candidates who purportedly had access to prohibited content; and there was no evidence that she had direct communication with the NEG teachers, tutors, or the individual who distributed the prohibited content.

72Ms. Butler notes that the hearing panel largely accepted her evidence. It weighed the evidence and preferred Ms. Butler’s evidence. The panel weighed Ms. Butler’s group chat participation with her evidence that she was not very involved in the group. That evidence included caring for infant and toddler; not attending live tutorials but watching recordings instead on her time; and having no personal connection with NEG students, staff or tutors.

73The panel assessed her credibility and made findings of fact based on that credibility assessment. It is her position that credibility assessments are findings of fact; therefore this ground of appeal is not available to the Law Society.

74Moreover, the panel considered the forensic report and all of the other evidence before it; noted that there was no direct evidence that Ms. Butler received the prohibited content; and was satisfied that there was evidence, other than cheating, that explained the forensic report’s statistics. This is also a finding of fact which the Law Society is precluded from raising as a ground of appeal.

75Finally, the panel noted that Law Society provided no evidence to contradict Ms. Butler’s evidence about her interactions with NEG. The panel noted that the ASF indicates that one person said that prohibited exam content was posted to the group chat but the ASF does not say that Ms. Butler received it or downloaded it.

76In short, Ms. Butler says that the hearing panel was entitled to take into account her testimony and prefer her testimony, as it did. It is her position that the Law Society simply does not like the result but it is barred from appealing findings of fact. Alternatively, if we determine that this is an issue of mixed fact and law then the panel’s conclusion was not unreasonable.

Conclusions

77As discussed below, we accept the Law Society’s submission that the hearing panel did not reach its conclusion as to how Ms. Butler obtained access to prohibited material by considering the evidence as a whole. We find that the panel’s approach was an error of law.

78It is important to be clear that the question to be decided was whether or not Ms. Butler knowingly had access to prohibited material. How Ms. Butler obtained access was very important to the question of whether she knowingly had access. The fact that her exam results were much better than previous results, for example, is not relevant because there is no dispute that she had material that she should not have had.

79We are not persuaded that the panel misunderstood evidence, generally. Despite its criticisms of the ASF, it stated clearly that it “relied significantly on its contents”.⁴² It set out in great detail the evidence relied upon to find that Ms. Butler made an inaccurate statement.⁴³ However, we conclude that the hearing panel erred in law in reaching its conclusion that Ms. Butler did not cheat on the November 2021 solicitor exam. It stated its conclusion as follows:

The Law Society has not established that Ms. Butler knowingly used prohibited material prior to or during the November 2021 solicitor exam. It has not provided compelling evidence beyond the Caveon Report which, on its own, is insufficient to establish that Ms. Butler cheated. Accordingly, we find on a balance of probabilities, based on all the evidence presented, including Ms. Butler’s testimony before us, that Ms. Butler did not cheat on the November 2021 solicitor exam.⁴⁴

80There is no mention in this conclusion of Ms. Butler’s assertion that she was “fed” answers in the guise of practice questions and answers.

81The reasons leading up to this conclusion span from paras 113-146. These reasons consider:

• Ms. Butler’s demeanour and her explanation for not having fully engaged with the NEG program;⁴⁵

• the agreed statement of facts (ASF), which the hearing panel took some issue with but ultimately accepted as binding;⁴⁶

• the Caveon Report;⁴⁷ and

• the lack of evidence confirming use of the cheating key.⁴⁸

82There was no analysis of Ms. Butler’s theory about how she was exposed to prohibited material. Instead, the panel accepted as a possibility Ms. Butler’s contention that she must have been unknowingly “fed” answers during NEG workshops and lectures, but it did not consider whether that was likely, or even possible, in light of other evidence. That other evidence is as follows.

83The last NEG workshop was held on November 13.

84The November exams were held each day from the 16^th to the 19^th.

85Exam content from the November 16 or 17 exam was leaked and made available on the 17^th when two to three documents, including the 18-21 Braindump material, were uploaded to the Reg Sol Nov 21 Skype group.

86This exam content became available after the last NEG workshop and therefore could not have been “fed” to Ms. Butler during the workshop.

87Her explanation is simply not plausible based on this timeline alone. Ms. Butler offered no other explanation for how her results so closely aligned with the material leaked and made available the day before her exam. The forensic testing conclusions were:

• Ms. Butler’s results were so similar to a cluster of other candidates that there was only a chance of one in over a trillion that she obtained the result independently.

• It was 1,905.46 times more likely than not that she obtained her result by relying on the Bundle 3 Braindump than by responding independently.

• For the 18-21 Braindump, Ms. Butler’s responses matched all of the 59 items from the key. It was 323 times more likely than not that she obtained her result by relying on the 18-21 Braindump than by responding independently.

88Ms. Butler’s assertion that she was familiar with exam content from previous exam sittings, and that she had focussed on areas of improvement after previous exams were assessed, do not explain how her November 18 results so closely matched the cheating materials that were leaked and uploaded the day before her exam.

89There was, however, other evidence to explain her exam results and the forensic testing results, namely her engagement with NEG from November 16-18, when the prohibited materials were released and when she wrote the exam.

90Ms. Butler was active in the WhatsApp group at the time that the cheating material was uploaded to the Skype group, of which she was also a member. Of the over 170 messages that Ms. Butler posted to the Reg Sol Nov 21 WhatsApp group, at least one was posted on November 16 which was the day before the 18-21 Braindumps and two other documents were uploaded to Skype.

91Ms. Butler posted at least one other message in the early morning hours of November 18 which was the same day that she wrote the exam and the day after the material was uploaded to Skype.

92At the very least, these posts demonstrate that she remained engaged with NEG when the material was made available.

93Again, there was no dispute that she had access to prohibited content. The issue is whether it was unknowingly or knowingly. Other than a denial from Ms. Butler, there is no evidence to support the conclusion that it was unknowingly. The materials did not come from the workshops. There is evidence to explain how it could have been knowingly obtained; that is, Ms. Butler was engaged in at least one group chat while the cheating material was posted in another group of which she was a member.

94The panel did not, but should have, scrutinized Ms. Butler’s explanation and considered it in light of the staggering forensic testing results. It did not consider whether Ms. Butler’s explanation for her exam results and forensic testing results was likely, and even possible, in light of other evidence strongly suggestive of cheating. Failure to do so was an error of law.

95In contrast, the hearing panel scrutinized evidence in support of the Law Society’s theory and rejected the Law Society’s contention. It did so without taking into account whether Ms. Butler’s explanation was plausible.

96The panel made a further error of law by assessing Ms. Butler’s credibility largely based on her demeanour without considering whether her story was consistent with the preponderance of reasonable probabilities. Her credibility was not assessed by reference to the plausibility of her explanation for having access to prohibited material.⁴⁹

97Instead of scrutinizing Ms. Butler’s explanation, the panel noted that there was no evidence that Ms. Butler participated in the Skype group chat, and it accepted that her denial of participating in it.⁵⁰ In other words, the panel based its decision on Ms. Butler’s representations. It stated:

We found Ms. Butler’s evidence to be credible and straightforward. She answered questions thoughtfully and thoroughly. She was not evasive. She was unshaken in her evidence that she did not use prohibited material during the exam and that she was unaware that NEG was distributing prohibited material to some NEG students.

She provided important context for her prior exam results and her lack of engagement in NEG, namely, the fact that she was pregnant and ill and/or with a young child in her previous exam attempts and that her childcare responsibilities kept her from fully engaging in the NEG program. We found these explanations to be reasonable and to accord with common sense.

Where Ms. Butler’s evidence was uncontested – and much of it was – we accepted it.⁵¹

98Credibility assessments are findings of fact which are afforded deference; however, they must be based on more than impressions of demeanour and must be tested against conflicting evidence.⁵² A panel should not consider a party’s testimony in isolation; rather, it must consider all of the evidence when evaluating how any inconsistencies affect credibility and reliability.⁵³ A panel ought to be able to say that the testimony accords with the probabilities in the case and to state those reasons why it reached that conclusion.⁵⁴

99Even where there was strong circumstantial evidence of cheating, it was for the panel to prefer Ms. Butler’s evidence if it accepted that her credibility was unimpugned. However, it did not reach that conclusion about her credibility. Instead, it erred when it preferred her evidence despite finding that she was not straightforward in at least one instance and noted that this called into question her character.

100Although the panel describes an “inaccurate statement”, it found that Ms. Butler knew that the statement was false at the time that she made it when her candidacy was under investigation. It found that encouraging others to give generic answers was not appropriate and that her failure to acknowledge that she had done so was more serious conduct.⁵⁵

101An insignificant lack of candour is a lack of candour. As stated above, one is candid or one is not. Ms. Butler was not. The remainder of her evidence, as well as circumstantial evidence in the case (described above), should have been evaluated with that background in mind.⁵⁶

102It is apparent that the panel was persuaded by Ms. Butler’s testimony. We conclude, however, that it did not sufficiently consider that Ms. Butler’s lack of candour diminished the reliability of her testimony. As a result, and together with its failure to properly assess her credibility, the panel afforded greater weight to her testimony than it was permitted to do considering the significant circumstantial evidence in the case.

103We conclude that the panel erred in law by improperly assessing Ms. Butler’s credibility.

Standard of proof

104The standard of proof in civil cases is balance of probabilities.⁵⁷

105The panel stated the correct standard of proof but did not apply it.⁵⁸

106The panel required confirmatory evidence that Ms. Butler knowingly had access to prohibited material. That approach conflated the forensic report’s recommendation to consider other types of evidence that confirm or explain the statistical observations outlined in the report with the Law Society’s standard of proof to establish that Ms. Butler cheated. This elevated the standard of proof beyond a balance of probabilities. Evidence confirming cheating was not required. This was an error of law.

Conclusion

107The panel made errors of law in reaching its conclusions. As a result, the finding of good character cannot stand.

No breach of procedural fairness

108The Law Society submits that it was not afforded procedural fairness in two instances. First, that it was improper for the panel to stop Law Society counsel from completing submissions about the June 2021 barrister exam and limit submissions to the November 2021 solicitor exam. Second, it made prejudicial findings against the Law Society in its review of the ASF without affording the parties the opportunity to make submissions.

109The reasons state that the Law Society raised the June 2021 exam for the first time at the hearing and that was “fundamentally unfair.”⁵⁹ The Law Society says that this was an incorrect statement as Ms. Butler was advised of, understood, and had the opportunity to respond to what it learned about her possible cheating on the June 2021 exam. The June 2021 exam was addressed in the ASF and in Ms. Butler’s affidavit.

110Ms. Butler asserts that the Law Society was not denied procedural fairness to make submissions about whether Ms. Butler cheated on the June 2021 exam. To the contrary, the panel invited Law Society counsel to address why it could consider the issue but counsel did not continue. In any event, Ms. Butler says the panel provided reasons why the Law Society had not proven on a balance of probabilities that she cheated on the June 2021 exam.

111Ms. Butler concedes that the panel’s criticism of the ASF was fair but it is irrelevant that submissions were not invited because the panel concluded that it was bound by the ASF and relied significantly on its contents.

112The parties agree, as do we, that the appropriate standard of review is correctness.

113Procedural fairness requires that parties are afforded the right to be heard.⁶⁰ It is a fundamental principle of administrative law that parties are provided the opportunity to address issues in dispute.

114We do not agree that there was a breach of procedural fairness.

June 2021 exam submissions

115The panel raised concern with Law Society counsel at the hearing about its ability to make any finding about the June 2021 exam. An exchange occurred between the hearing panel’s chair and counsel. Counsel persisted in the argument and was told that it would not be entertained. Counsel for Ms. Butler also stated that he was not aware that the issue would be addressed at the hearing.

116The panel also explained its ruling in its written reasons that it was unfair to a licensing candidate to face such a significant allegation at the hearing, as that is simply providing too little time to adequately respond.

117Procedural fairness applies to both parties and the panel was attuned to that. The ASF document book included prohibited materials about the November exam but not with respect to the June exam. The panel was not provided with any forensic testing analysis pertaining to the June exam. Importantly, Ms. Butler was not provided meaningful notice of the Law Society’s intent to address the June exam at the hearing. We are not persuaded that the panel erred.

Agreed statement of facts

118The panel pointed to several difficulties it had with the ASF. Briefly, it commented that the ASF contained information about other students that was not applicable to Ms. Butler; it contained information that was considered solely to be within the Law Society’s knowledge; and it misconstrued results of the forensic report.

119We agree with the Law Society that criticisms of the ASF appeared to be directed toward it. In addition to the above, the panel took issue with the following:

• “The Law Society provided no information about the cluster index relating to Ms. Butler’s results to Part 2 of the November 2021 solicitor exam.”⁶¹

• “The Law Society did not disclose the Caveon analysis of Ms. Butler’s results in the accompanying document book” leaving the panel without that information.⁶²

• The ASF did not state that Ms. Butler’s exam was not flagged as being identical to anyone else’s and this only became apparent when the panel questioned the Law Society. The panel noted that this information was omitted from the ASF.⁶³

• The Law Society either did not engage the forensic testing company to perform analysis of the June exam or “the Law Society chose not to include the results of any analysis of that exam in the ASF.”⁶⁴

(emphasis added)

120This language, and erroneous reference to Ms. Butler being “deemed” to have admitted the truth of the information in the ASF, suggests that the panel regarded the ASF as a Law Society document, despite its statement that it was negotiated between the parties.⁶⁵ However, not raising this with the parties at the hearing or before the decision was released does not rise to the level of procedural unfairness.

121Procedural fairness includes the opportunity for parties to address issues of concern where the panel identifies an issue arising from evidence that was not raised or addressed by the parties.⁶⁶ A decision cannot be rendered on an issue for which the parties have not led evidence or at least made submissions. But that did not happen in this case.

122While it might have been preferable to extend an opportunity to the parties to address these concerns, we are not persuaded that failing to do so was a breach of procedural fairness. The panel accepted the evidence contained in the ASF. We see nothing in the reasons that contradicts evidence in the ASF, nor did the panel identify a new issue stemming from the evidence. Had that been the case then it would have been required to hear from the parties and possibly receive additional evidence. Again, that was not the case here. The panel’s criticisms of the ASF did not affect its conclusions about s 8(2) or good character.

123We conclude that there was no breach of procedural fairness.

CONCLUSION

124The Law Society requests that we set aside the hearing panel’s order and substitute it with our own; or alternatively, that we refer the matter to a new hearing before a different panel.

125We find that the hearing panel erred in law:

• in its interpretation and application of section 8(2) of By-Law 4;

• by failing to consider evidence as a whole;

• by improperly assessing Ms. Butler’s credibility; and

• by applying a greater standard of proof than that which is required.

126We conclude that there was no breach of procedural fairness.

127Having concluded as we have above, we do not address the remaining grounds in the notice of appeal.

128We find that Ms. Butler breached s 8(2) of By-Law 4 such that she is deemed not to meet the requirements for the issuance of any licence under the Act.

129We set aside the hearing panel’s decision that Ms. Butler is currently of good character.

130The Law Society seeks costs of the stay motion and this appeal. It may serve and file brief written materials within 14 days of the date of these reasons. Ms. Butler will then have 28 days from the date of these reasons to file responding submissions.

Footnotes

1. 1Butler v Law Society of Ontario, 2025 ONLSTH 91.
2. 2Butler at para 132.
3. 3Butler at para 114.
4. 4Butler at para 143.
5. 5Butler at paras 133-134.
6. 6Butler at para 194.
7. 7Butler at paras 117-118.
8. 8Armstrong v Law Society of Upper Canada, 2009 ONLSHP 29.
9. 9Butler at para 196.
10. 10Butler at para 206.
11. 11Butler at para 208.
12. 12Butler at para 215.
13. 13Butler at para 230.
14. 15Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 29.
15. 16Act, s 49.33(2).
16. 17Levinson v Law Society of Upper Canada, 2009 ONLSHP 98 at para 93; Law Society of Upper Canada v Stewart, 2012 ONLSAP 30 at para 25; Amendola v Law Society of Ontario, 2022 ONLSTA 3 at para 6, upheld, 2023 ONSC 4123; Jariwala v Law Society of Ontario, 2025 ONLSTH 181 at para 98, citing Dumanian v Law Society of Ontario, 2024 ONLSTA 7 at para 53.
17. 18Taylor v Law Society of Ontario, 2019 ONLSTH 25 at para 64; Dumanian at paras 29 and 53; Hassard v Law Society of Ontario, 2023 ONLSTH 101 at paras 61 and 67; Levinson at para 93.
18. 19Butler at para 194.
19. 20Jariwala at para 98.
20. 21“Inaccurate: not accurate; inexact, imprecise, incorrect.” Canadian Oxford Dictionary, 2^nd Ed.
21. 22Jariwala at paras 95 and 97, citing Stewart at para 26. Jariwala was not released until the day of the appeal hearing. The hearing panel did not have the benefit of reviewing that decision.
22. 23Stewart at para 33.
23. 24Levinson at para 96.
24. 25The panel found that Ms. Butler told others in the chat group to provide generic answers to the Law Society and that this was not appropriate: paras 206 and 208.
25. 26Butler at para 215.
26. 27Butler at para 230.
27. 28Butler at para 208.
28. 29Levinson at para 95.
29. 30Levinson at para 93.
30. 31Butler at para 207.
31. 32Stewart at para 41.
32. 33Jariwala at paras 99-100.
33. 34Butler at para 131.
34. 35Butler at para. 147.
35. 361997 CanLII 385 (SCC) at para 41.
36. 372011 SCC 45 at para 31.
37. 382012 ONCA 470 at para 13.
38. 392016 ONSC 7508 at para 24 (rev’d on other grounds, 2018 ONCA 61).
39. 402020 ONSC 1192 at para 368.
40. 412018 ONCA 184 at para 30.
41. 42Butler at para 129.
42. 43Butler at para 194.
43. 44Butler at para 147.
44. 45Butler at paras 115-119.
45. 46Butler at paras 120-129.
46. 47Butler at paras 130-133.
47. 48Butler at paras 134-146.
48. 49Butler at paras 115-119.
49. 50Butler at para 135.
50. 51Butler at paras 117-119.
51. 52Faryna v Chorny, above at p 357.
52. 53F.H. v McDougall, 2008 SCC 53 at para 58.
53. 54Faryna v Chorny, above at p 357.
54. 55Butler at paras 211 and 215.
55. 56F.H. v McDougall, above at para 58.
56. 57F.H. v McDougall, above at para 40.
57. 58At para 147 it concluded that on a balance of probabilities that Ms. Butler did not cheat.
58. 59Butler at paras 2, 104, and 111-112.
59. 60Afolabi v Law Society of Ontario, 2025 ONCA 257 at para 109; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 at para 28.
60. 61Butler at para 61.
61. 62Butler at para 62.
62. 63Butler at para 63.
63. 64Butler at para 63.
64. 65Deemed admissions can arise from an unanswered or delayed response to a request to admit; however, parties are not deemed to have admitted facts that they negotiate and agree to include in an agreed statement of facts.
65. 66Singh v Law Society of Ontario, 2023 ONLSTA 7 at para 41.
66. 14These are condensed and do not reflect the same numbering as grounds noted in the notice of appeal.