LAW SOCIETY TRIBUNAL
HEARING DIVISION
Tribunal File No.: 24H-145
BETWEEN:
Law Society of Ontario
Applicant
- and -
Gregory John Willoughby
Respondent
Before: Lubomir Poliacik (chair), Jonathan Rosenthal, John F. Spekkens
Heard: April 14-16, 2026, by videoconference
Appearances:
Joshua Elcombe, for the applicant
Respondent, self-represented
Summary:
WILLOUGHBY – Professional Misconduct – Failure to Serve – The Law Society alleged that the Lawyer failed to serve his clients to the standard of a competent lawyer, failed to account to his client and failed to act with honor and integrity – The Lawyer disputed some of the allegations and conceded some of them – The panel found that that all allegations were established and the Lawyer engaged in professional misconduct – A hearing on penalty is to be scheduled.
REASONS FOR DECISION ON FINDINGS
1Jonathan Rosenthal (for the panel):- Gregory John Willoughby (the respondent) was called to the bar of Ontario in 2000. He practises immigration and citizenship law as a sole practitioner in London, Ontario.
2The Law Society alleges that the respondent engaged in professional misconduct in relation to his representation of three clients.
ALLEGATIONS
Client A
3In relation to Client A, it is alleged that the respondent:
Deposited a retainer into his general account before his fees were earned.
Failed to serve Client A to the standard of a competent lawyer.
A. Misled Client A and her subsequent lawyer;
B. Falsified Client A’s signature;
C. Kept Client A’s retainer despite him not earning it.
Failed to provide accurate and timely information to Client A’s subsequent lawyer.
Failed to account to Client A following the end of the retainer.
4The respondent admits he committed professional misconduct with respect to particulars 2, 4 and 5.
5The respondent disputes he committed professional misconduct with respect to particular 3 as alleged. Rather, he admits the misconduct but submits it amounts to a failure to serve contrary to Rule 3.1-2 of the Rules of Professional Conduct.
6The respondent disputes particular 1.
Client B
7In relation to Client B, it is alleged that the Respondent:
Failed to serve Client B to the standard of a competent lawyer.
Misled Client B with respect to the information he submitted on Client B’s behalf.
8The respondent disputes particular 6.
9The respondent admits particular 7.
Client C
10In relation to Client C, it is alleged that the Respondent:
- Failed to serve Client C to the standard of a competent lawyer.
11The respondent disputes particular 8.
All three clients
12We have found misconduct as alleged in all the particulars in the notice of application. These reasons explain why.
BACKGROUND
Client A
13In November 2022, Client A retained the respondent by way of a block fee retainer to submit a citizenship application. The respondent deposited the retainer into his general account.
14The respondent told Client A that he had submitted an application to Immigration, Refugees and Citizenship Canada (IRCC). The application had not been submitted.
15Client A retained new counsel. The respondent provided new counsel with a copy of an application. This application had not been submitted to IRCC.
16A different application was submitted by the respondent to IRCC dated April 2023. A copy of this application was never provided to Client’s A’s new lawyer.
17Both applications were signed with a cut and paste signature of Client A.
18Client A never authorized the respondent to sign the application on her behalf.
19The April application was rejected by IRCC. The respondent did not tell either Client A or her new lawyer that the application had been rejected.
20The respondent never returned the monies he received from Client A.
Client B
21Client B is a citizen of Libya. He, his wife, and his three children were living in London, Ontario. Client B was attending university studying to obtain his PhD.
22In August, 2018, Client B retained the respondent to help him enable his family to remain in Canada.
23The respondent advised Client B that his best option was to apply for permanent residence status (PR) based on humanitarian and compassionate grounds (H&C).
24The respondent prepared an application for PR on the basis of H&C.
25At the time, an administrative deferral of removal (ADR) was in place with respect to Libya. The respondent did not consider the impact of the ADR on an H&C claim.
26Further an H&C claim must be based on potential specific harm to an applicant if they are not allowed to remain in Canada. The application filed was based on the general conditions in Libya.
27Client B told the respondent about his personal situation including what occurred when he returned to Libya to renew his passport. This was not included in the application.
28The application was refused on the basis that the application lacked any personalized specific harm as well as the fact that the ADR was in place.
29After the application was refused the respondent did not inform Client B of the short deadline for appealing the refusal by way of a motion for leave for judicial review.
30The respondent told Client B that further documents had been provided after the initial application was filed. Client B requested copies of everything that was filed after the initial application was filed.
31The respondent provided falsified documents to Client B to mislead Client B to believe that documents that were never filed had in fact been filed.
Client C
32Client C was from Palestine. She had PR status in both Canada and the United States. She wished to become a citizen of Canada and retained the respondent to prepare her application for citizenship.
33Her application was rejected as she did not spend the requisite time in Canada to be eligible for citizenship. This was because she was in Canada for some period of time on an expired visitor’s visa. This time did not count.
34The respondent failed to inquire as to her status in Canada. Had he done so it would have become apparent the Client B was 15 days short.
35There is a 30-day limitation period to make written representations regarding a failed application.
36The respondent had moved offices after filing the application but failed to update his address with IRCC or to pick up his mail promptly at his former office. He received the notice after the 30-day period had expired.
THE HEARING AND WITNESSES
37The Law Society called Client A, Client A’s husband, Client B, and Client C as witnesses. The respondent testified and called three character witnesses. The portions of the Law Society’s request to admit (RTA) and documents admitted by the respondent were entered into evidence. The respondent filed a book of documents which included a neuropsychological assessment of the respondent.
38Much of the respondent’s evidence was in relation to his personal circumstances. This included his involvement in two tragic cases, namely his parents’ struggles with dementia, including the incredibly sad circumstances involving his father being criminally charged and being sued, and the respondent’s own cognitive issues. This evidence may be relevant to the penalty phase.
Credibility and reliability
39With respect to particulars 6 and 8 the evidence of the respondent is in significant conflict with the Client B’s and Client C’s1 evidence. It is important to assess both the credibility and the reliability of witnesses. As set out in the jurisprudence we proceed “equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty”: R. v G.F., 2021 SCC 20 at para 82.
40As some of the allegations require assessments of credibility, we, are guided in our assessments by the leading case of Faryna v Chorny, 1951 CanLII 252 (BCCA), in which the British Columbia Court of Appeal held at p 357:
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 a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
41As the Supreme Court of Canada said in F.H. v McDougall, 2008 SCC 53 at para 58, we:
… should not consider [a witness’] evidence in isolation, but must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case.
42We further recognize that credibility is not an all or nothing proposition. A witness may be found to have been credible in some respects and not in other respects. On the other hand, finding a witness not to be credible on one or more issues may affect findings of credibility on other issues: F.H. v McDougall at paras 95-96.
Character witnesses
43The respondent called three character witnesses as part of his case: Claire Guzanova, his legal assistant; Julia Radionova, a lawyer; and Suel Lee, a lawyer.
44Character evidence could be admissible for the limited purpose of enhancing the credibility of the respondent.2 However as a result of the character witnesses’ lack or limited knowledge of the respondent’s prior disciplinary history3 and their limited understanding of the current proceedings, we give very little weight to the character evidence.4
ANALYSIS AND CONCLUSIONS
Conclusion as to credibility and reliability
45In the reasons that follow, we have concluded that the respondent’s overall credibility is significantly impeached by his actions described in particulars 3(b) and 7, admitted by him.
46He used a cut and paste signature of Client A without her authorization on two applications; one of which was submitted to IRCC.
47He misled Client B by advising him certain document had been submitted to IRCC when in fact the respondent falsified these documents after Client B’s application had been rejected.
48In addition, we have concluded that the respondent’s overall reliability is significantly reduced by his own evidence and admission that his cognitive difficulties had impacted his memory. This is also supported by the Neuropsychological Assessment.
Client A
Particular 1
49The portions of By-Law 9 that are relevant to this particular are as follows:
- (1) Subject to section 8, every licensee who receives money in trust for a client shall immediately pay the money into an account at [permitted financial institution] to be kept in a [a named] trust account.
(2) For the purposes of subsection (1), a licensee receives money in trust for a client if the licensee receives from a person:
(d) money that is advanced to the licensee on account of fees for services not yet rendered; or
(e) money that is advanced to the licensee on account of disbursements not yet made.
50The respondent was first contacted by Client A and her husband on November 7, 2022. Client A was living in the United States (where she was born) but wished to become a Canadian citizen. As her father was born in Canada she learned she was entitled to become a Canadian citizen.
51Client A and her husband spoke with the respondent on November 8, 2022 on the telephone. The respondent quoted Client A a block fee of $1,500 plus a government fee (disbursement) of $100. On the same date he sent Client A an invoice marked “due on receipt” of $1,575 ($1,500 for legal fees and $75 for application fee).
52The invoice stated:
Consultations; Review of Supporting Documentation; Research regarding Eligibility for Canadian Citizenship; Legal Submissions regarding Eligibility; Follow-through to issuance of Citizenship Certificate.
53The fee quoted and the invoice issued included the filing of the citizenship application and following through to the obtaining of Canadian citizenship. In other words, the fee quoted was to the conclusion of and granting of Canadian citizenship.
54The invoice was paid on November 9, 2022, and the funds were not deposited into the respondent’s trust account.
55The respondent did not pay the government filing fee until November 13, 2022.
56The respondent continued to receive documents necessary to complete the application from Client A until December 1, 2022. The application was not filed until April of 2023 at the earliest.
57The respondent testified that there is a benefit of a block fee to a client as it gives the client certainty as to the financial costs. We agree there can be benefits to a client with a block fee. A block fee, however, does not mean that the legal fees and disbursements are not trust funds or that By-Law 9 does not apply.
58The respondent testified that he had earned the $1,500 by the time he deposited those monies into his general account as the work was substantially completed.
59We reject the respondent’s position that the work was substantially completed and he believed the work was substantially completed by November 9, 2022, the day after he first spoke with Client A.
60By-Law 9(7) requires that monies remain in trust until the fees are earned and the work completed. The respondent never deposited the monies into his trust account. The respondent had not substantially completed the work when he deposited the monies directly into his general account.
61By depositing the monies directly into his general account prior to substantially completing the work the respondent did not comply with By-Law 9(7).
62We find that particular 1 is proven.
Particular 2
63The respondent admits that he failed to serve Client A to the standard of a competent lawyer.
64The LSO argues he did so by:
failing to submit the application for five months;
filing an incomplete citizenship application;
cutting and pasting Client A’s signature; and
misleading Client A.
65Client A’s husband called the respondent in December 2022 or January 2023 to confirm that the application had been filed. The respondent told Client A’s husband that the application had been filed and that he was waiting to hear back from the government.
66It had not been filed. It was filed sometime in April of 2023.
67The application was returned incomplete by IRCC as it did not contain two identification documents.
68Client A and her husband emailed the respondent on March 26, 2023, requesting a copy of the application that they were told had been filed. The respondent did not respond.
69Client A retained new counsel in or around April 18, 2023. On April 20, 2023 new counsel requested a copy of Client A’s file. On April 24, 2023 the respondent provided the file and it contained an application dated December 10, 2022 (the December application). The December application was never submitted to IRCC.
70The respondent submitted an application to IRCC dated April 12, 2023 (the April application).
71The respondent testified he had prepared and submitted the April application before he received the request from new counsel for the file. He testified that sometime before he received the request from new counsel he discovered he had not filed the December application to IRCC.
72When he discovered that he had not filed the December application to IRCC, he did not advise Client A. The respondent could not offer any explanation as to why he did not provide the April application to new counsel.
73New counsel wrote to the respondent on May 17, 2023 inquiring if Client A’s application had been submitted to IRCC.
74On May 23, 2023, the respondent replied to new counsel advising the application had been submitted. He did not inform new counsel that it was only submitted in April of 2023 nor did he provide new counsel with a copy of the April application.
75On June 12, 2023, the respondent received a letter from IRCC advising the April application was incomplete. He did not advise Client A or new counsel of this letter.
76There are six declarations on a citizenship application that an applicant must make. They are:
a. I agree to advise IRCC if any information on this form changes before the procession of my application is complete.
b. I understand the contents of this form.
c. I declare the information provided is true, correct and complete.
d. I declare the photographs enclosed are a true likeness of me.
e. I understand that if I, or someone on my behalf makes a false representation, commit fraud or conceal any material circumstances relevant to my application, my application could be denied, my citizenship certificate could be taken away and I could be charged with an offence provided for under the citizenship Act or the Criminal Code.
f. I declare that I am not using this form to apply for a grant or Canadian citizenship for a person adopted outside of Canada by a Canadian citizen. I understand that a person adopted outside of Canada can only use this form to apply for a replacement certificate.
77Both the December application and the April application contain the signature of Client A copied from her marriage certificate that was provided to the respondent. The signature was of Client A’s former married name.
78The December application has the location of London as the city where the application was signed. The April application has the location of North Salem (where Client A resides) as the city where the application was signed.
79Accompanying both the December application and the April application is a Use of Representative Form.
80There is also a declaration on this form that states:
I declare that I fully and truthfully answered all questions on this form and any attached application (if applicable).
I also declare that I have read and understood all statements on this form and have asked and obtained an explanation for every point that was not clear to me.
81Both the December and April applications and the Use of Representative Form contain the signature of Client A copied from her marriage certificate that was provided to the respondent. The signature was of Client A’s former married name.
82Client A testified:
She never authorized the respondent to cut and paste her signature from her marriage licence on her behalf.
She has never been to London, Ontario.
She never saw a copy of the Citizen application nor the Use of Representative form
83The respondent accepts that he was never authorized to cut and paste her signature.
843.1-2 of the Rules of Professional Conduct states:
A lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer.
85Rule 3.1-1 of the Rules of Professional Conduct defines competence for the purpose of the Rules. Some of the portions relevant to these allegations are:
(d) communicating at all relevant stages of a matter in a timely and effective manner
(e) performing all functions conscientiously, diligently, and in a timely and cost- effective manner;
(g) complying in letter and in spirit with all requirements pursuant to the Law Society Act
86We are more than satisfied, as admitted by the Resondent, that he failed to serve Client A to the standard of a competent lawyer.
87Not filing the Citizenship Application for five months was not timely.
88Filing the Citizenship Application without two identification documents which was returned by IRCC was neither conscientious nor diligent.
89Misleading Client A’s husband by stating the Citizenship Application had been filed when it had not been was not effective communication.
90Cutting and pasting Client A’s signature without her authorization as set out above was neither conscientious nor diligent.
91We find that particular 2 is proven.
Particular 3(a)
92As set out above the respondent admits he committed professional misconduct with respect to particular 3(a), but only on the basis of failure to serve. However, the Law Society alleges that this particular is a breach of integrity as set out in in Rule 2.1-1 of the Rules of Professional Conduct, which states:
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.
93Our task here is to decide whether his misleading of Client A and her new counsel as to when the application was filed was dishonourable and/or indicative of a lack of integrity.
94The respondent told Client A’s husband in December of 2022 or January of 2023 that the citizenship application had been submitted. As discussed above, this was not true. The application was not submitted until sometime in April of 2023.
95Client A and her husband asked for a copy of the application on March 26, 2023. The respondent failed to respond.
96We know that sometime in April 2023, the April application was filed. According to the respondent this was on April 12, when he discovered that he had failed to file the application in December. He states this was before he received the letter from new counsel on April 20.
97When he discovered he had not filed the application, he would have realized this was a significant error that would require a new application. He had not communicated with Client A since January. However, he did not notify Client A of this.
98The respondent sent three emails to new counsel on April 24, 2023 in response to new counsel’s April 20 email. The three emails enclosed different portions of the file. The first email included the December application and the latter two emails included copies of the documents Client A had provided him. He did not provide the April application.
99The respondent testified that he just pulled out the file and sent it in haste. He testified that he did it as quickly as possible because when there is a request for a file, you should do it as soon as possible. This explanation lacks credibility.
100The request for his file was made on April 20,2023. He did not reply for four days.
101There is no credible explanation as to why he did not provide a copy of the April application which he had prepared, according to the respondent, less than two weeks earlier.
102He did not advise new counsel that the December application was never submitted to IRCC.
103When new counsel wrote to him again on May 17, 2023, asking if the application had been filed, the respondent simply advised it had. He again failed to provide a candid, full and honest answer which would have been it was filed, but just over a month ago.
104His explanation that his response was sent early in the morning and he was probably getting out of bed or eating breakfast, so he just shot a quick e-mail and did not know the exact date lacks credibility and defies logic.
105The email from new counsel was on May 17, 2023. His response was sent on May 23, 2023.
106The Law Society submits that when the respondent received the email from new counsel, he realized that he had failed to file the application. He then prepared the April application and submitted it to IRCC hoping that the citizenship application would be granted. This would also explain why he had no choice but to submit an incomplete application and cut and past signatures.
107We find that this is very likely what occurred.
108Regardless, we are more than satisfied that the respondent misled both Client A and new counsel intentionally and thus acted dishonourably and with lack of integrity.
109We find particular 3(a) is proven.
Particular 3(b)
110Similar to particular 3(a) the respondent admits professional misconduct but only on the basis of failure to serve. Again we must decide whether falsifying Client A’s signature is dishonourable and/or indicative of a lack of integrity.
111Client A testified that she never authorized the respondent to cut and paste her signature and the issue was never discussed.
112The respondent accepts he had no authority from Client A to do so and accepts Client A’s evidence that there was no discussion about this.
113This was done with respect to two documents in both applications. Signing a false signature is serious misconduct. Additionally, not only did the respondent falsify Client A’s signature, he did so while acknowledging matters on her behalf that he knew were false.
114He did so knowing that Client A had never seen the citizenship application nor the Use of Representative Form.
115Falsifying a client’s signature with declarations that are known to be false is dishonourable and shows a lack of integrity.
116We find particular 3(b) is proven.
Particular 3(c)
117Similar to particulars 3(a) and (b), the respondent admits professional misconduct but only on the basis of failure to serve. Again we must decide whether failure to refund or offer to refund any of the fees to Client A’s is either dishonourable or indicative of lack of integrity.
118As already set out above the respondent was retained on a block fee. The block fee was to the conclusion of and granting of Canadian citizenship.
119The application was submitted sometime in April of 2023. On June 12, 2023, IRCC wrote to the respondent and advised that the application was incomplete. The respondent took no steps after that.
120The respondent did not complete the matter and did not earn all of the fees he had been paid.
121The respondent did not refund nor offer to return any of the $1,500 he had received.
122The respondent admits he was not entitled to all of the fees he was paid by Client A. He testified the reason he did not refund the fees was he was concerned about a “conflict of interest.” He testified that when he had returned Client B’s fee he was cautioned by the Law Society that returning fees was a conflict of interest.
123We reject the respondent’s testimony. It makes no sense. If the respondent was correct a lawyer could never refund a client’s fees.
124Even if the respondent honestly believed that is what he was told by the Law Society as pointed out in cross examination, the issue of refunding fees was discussed in the Law Society’s interview of the respondent on April 17, 2024. He was told at that interview, “… obviously it's fine to offer a client a refund, but it's not fine to discourage clients from taking action, either making a complaint or so on. That would be the concern.”
125Despite being told this almost two years ago, the respondent took no action to refund or make an offer to refund to Client A.
126Client A was entitled to a refund. The respondent acknowledged that Client A was entitled to a refund. It was dishonourable for the Respondent to keep Client A’s monies.
127Particular 3(c) is proven.
Particular 4
128The respondent admits that he failed to provide accurate and timely information to Client A’s subsequent lawyer, contrary to Rule 3.7-9(f) of the Rules of Professional Conduct.
129Much of the facts in support of Particular 4 are discussed above in Particular 3(a).
130Rule 3.7-9 (f) states:
Upon discharge or withdrawal, a lawyer shall….
(f) co-operate with the successor legal practitioner so as to minimize expense and avoid prejudice to the client;
131The respondent failed to advise new counsel:
That the December application was never filed.
That the April application has just been filed.
That the April application was returned by IRCC as incomplete.
132Particular 4 is proven.
Particular 5
133The respondent admits that he failed to account to Client A following the end of the retainer, contrary to Rule 3.7-9(d) of the Rules of Professional Conduct.
134Much of the facts in support of Particular 5 are discussed above in Particular 3(b).
135Rule 3.7-9 (d) states:
Upon discharge or withdrawal, a lawyer shall….
(d) account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned during the representation.
136The respondent admitted that the block fee of $1,500 was to the conclusion of and granting of Canadian citizenship and this did not occur. The respondent did not earn the entire $1,500.
137The respondent accepted he was discharged in or around April of 2023 when he provided his file to new counsel. At this time the respondent was both obligated to account for the funds he received and to refund any monies not earned. The respondent never refunded any monies nor provided any account as to how much of the fee he earned.
138Particular 5 is proven.
Client B
Particular 6
139The respondent disputes that he failed to serve Client B to the standard of a competent lawyer.
Particular 7
140The respondent admits that he did not act honourably nor with integrity to Client B.
Particulars 6 and 7
141As the Law Society argues that the conduct alleged and admitted in particular 7 in and of itself amounts to a failure to serve, we will deal with particular 7 before particular 6.
Particular 7
142In August 2018, Client B retained the respondent to enable his family to remain in Canada. On behalf of Client B and his family the respondent prepared an application for PR status.
143This application was rejected on November 17, 2020.
144Client B was upset that his application had been rejected and dissatisfied with the representation he had received from the respondent. There were a number of emails between Client B and the respondent.
145In a telephone call on February 21, 2022, Client B requested that the respondent provide him with copies of all the documents submitted as part of the application.
146On February 19, 2021, the respondent emailed Client B advising what documents he had filed on March 6, 2020. Included with the email were five pdf files. Two of the files, purported to be from the IRCC Webform Portal dated March 6, 2020 confirming submission.
147Forensic analysis determined that the five pdf files were created on February 19, 2021.
148The respondent admits to falsifying the dates on these pdf files.
149The respondent admits he misled Client B by advising him documents had been submitted that he had not in fact submitted.
150Falsifying documents for the purposes of misleading a client and misleading a client demonstrates a lack of integrity and is dishonourable.
151Particular 7 is proven.
Particular 6
152The Law Society argues that filing falsified documents and misleading a client in the manner described above, is in itself a failure to serve to the standard of a competent lawyer. We agree.
153On this basis alone we would conclude that particular 6 is proven.
154For the sake of completeness, we will also consider the other evidence with respect to this particular.
155Client B and his family wanted to remain in Canada. The respondent advised Client B that his best option was to apply for PR based on H&C.
156Client B accepted the respondent’s advice and proceeded on that basis.
157The respondent prepared the application based on general conditions that existed in Libya. In denying the application the senior immigration officer noted that Client B’s personal experience in Libya was vague or lacking.
158Client B had testified about his personal experiences and that he told the respondent the same. Client B testified as to his personal experiences when he returned to Libya with his family. These included:
His experience at the passport office where he was subject to abuse.
That he could not return to his apartment.5
He had to make sure his children did not speak as they did not speak Arabic and was concerned that they could be kidnapped.
He could not let anyone know he was in Libya.
The violence and kidnapping near where his family resided.
That when he was in Libya, he had limited visits with family members.
159In cross-examination when the above was suggested to the respondent, he testified, “this was good stuff” and he would have included this if he was told about this.6 The respondent testified that Client B was unwilling to give him any personalized information.
160We reject the respondent’s evidence that he was not told these things. We fully accept Client B’s evidence that he provided the respondent with information of his personal experiences as outlined above.
161It does not matter, for the purposes of this particular, whether the respondent’s evidence was intentionally misleading in this regard or unreliable, based on his memory issues.
162The very evidence that was found to be lacking in the application was provided by Client B to the respondent and the respondent failed to include it in the application.
163In addition, at the time of Client B’s PR application an ADR was in place with respect to Libya. This meant only those, “who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security” could be removed. At the time neither Client B nor his family could be removed from Canada and sent back to Libya.
164This is another reason why the H&C failed. The respondent did not consider the impact of the ADR on the H&C claim.
165The decision rejecting the H&C was made on November 17, 2020.
166On November 30, 2020, the respondent emailed Client B enclosing a copy of the decision rejecting his H&C and advised Client B it would be very difficult to appeal the decision.
167At no point did the respondent advise Client B of the short time period to file an appeal. He should have.
168The respondent testified that on November 30, 2020, after he sent Client B a copy of the decision, they had a phone call wherein Client B told the respondent that he did not want to appeal.
169We do not accept this phone call took place. How is it possible that the respondent could recall some five-and-a-half years later a call for which he has no notes? Further the respondent has led evidence about his cognitive difficulties in remembering things.
170Even if this phone call did take place, it was still incumbent upon the respondent to advise Client B of the time limitation for the filing of an appeal. Even if Client B told the respondent that he did not want to appeal7 the respondent still should have told Client B of the time limitation for filing an appeal. Client B could change his mind.
171On March 16, 2021, the respondent admitted his error when in an email to Client B he wrote,
“You are correct that I should have advised you that there is a very short limitation period in which to appeal these cases but it was my opinion that any appeal would have been futile and a waste of time and money and I didn’t want you to waste any more money on an appeal that would not have been successful”
172Particular 6 is proven.
Client C
173Client C was from Palestine. Client C retained the respondent to prepare her application for Canadian citizenship.
174Client C became a PR in Canada on February 9, 2016. In order to qualify for Canadian citizenship she would have had to be physically present in Canada for at least 1,095 days within the preceding five years.
175On April 5, 2019, the respondent submitted the Canadian citizenship application. In the covering letter he submitted that Client C:
became a PR on February 9, 2016;
had been residing in Canada prior to April, 2014; and
had been physically present in Canada for 1,188 days.
176The respondent failed to inquire of Client C as to her immigration status in Canada between April of 2014 and the time she became a PR. In fact for some of the intervening time she was in Canada without a lawful permit. Time that Client C was not lawfully in Canada could not be counted towards the 1,095-day physical presence requirement.
177It was on this basis that IRCC rejected her Canadian citizenship application.
178It was the respondent’s responsibility to make this inquiry before submitting the Canadian citizenship application. He did not.
179The respondent realized his error in a text he sent to Client C on December of 2021.
The issue is whether you had legal Visitor status between 2014 and 2016 - when you became a Permanent Resident. I had thought you had exited and re-entered from the US and remained a valid visitor but I wasn’t too concerned about it back then because it wasn’t going to affect your PR application but it is relevant to the Citizenship application. I believe the Citizenship application is going to be refused because of this. As such, we’ll have to submit the Citizenship application again become(sic) now you definitely meet the residency requirements. I apologize for this oversight. I should have asked you more about this when we were preparing the Citizenship application.
180Had the respondent made this inquiry and come to this conclusion prior to submitting the citizenship application he would have realized Client C was 15 days short. And if he had delayed the filing of the application for 15 days, Client C’s citizenship would have been granted.
181There were other errors in the citizenship application, particularly in Section H where the calculation simply does not make sense. The respondent had no explanation for this error.
182On June 8, 2022, IRCC wrote to Client C at 201-235 North Centre Rd., London, Ontario. This was the address of the respondent’s law office as indicated in the citizenship application. IRCC’s letter indicated there was a 30-day limitation period to make any written representations.
183Unfortunately this letter only came to the attention of the respondent on August 11, 2022.
184The respondent claimed he had told the immigration officer on the phone he had changed his address. We do not accept his evidence that he has a memory of doing this almost four years ago.
185The respondent, who had been practicing immigration law for over 20 years at the time, would know that important documents, including important decisions with strict limitation periods for appeals would be mailed to him. It was incumbent on him to both ensure that IRCC had a current address and ensure that he pick up his mail in a timely manner.
186When notified by his former office that there was mail ready, he was less than diligent in picking up his mail, even when he was told it was from the Government of Canada.
187There is a 30-day limitation period to make written representations regarding a failed application.
188The respondent moved offices after filing the application but failed to update his address with IRCC or to pick up his mail promptly at his former office. He received the notice after the 30 day period had expired.
189We have summarized the relevant rules in paras 84 and 85 above.
190The respondent:
a. Failed to inquire of Client C as to her immigration status in Canada for the entire time she was in Canada.
b. Filed the citizenship application with errors.
c. Failed to update his address with IRCC and pick up mail in a timely manner after moving knowing that:
i. Decisions from IRCC are mailed.
ii. Knowing that the mail at his former office was from the Government of Canada
iii. Knowing there was a short appeal period.
191We are more than satisfied that the respondent failed to serve Client C to the standard of a competent lawyer.
CONCLUSION
192We have found that all the particulars have been proven.
Next Steps
193We direct that a penalty hearing be promptly scheduled.
Footnotes
- The overall thrust of the position of the respondent, and much of his cross-examination, his own testimony, and the testimony of the character witnesses related to his position that he wishes to surrender his licence as opposed to having his licence revoked. This issue is only relevant to penalty.
- R. v Béland, 1987 CanLII 27 (SCC). We see no reason why a respondent in a Law Society merit hearing could not do so.
- The Law Society acknowledged that it was not relying on the prior disciplinary history for any other purpose than to counter the good character evidence.
- In view of the ultimate position of the respondent as outlined in footnote 1, the character evidence may be more relevant to that issue.
- In the application prepared by the respondent it stated, “He did not travel away from his apartment”. This was incorrect.
- The respondent testified in examination that the winning argument was establishment in Canada. It was only in cross-examination that the respondent indicated that if he had this information he would have included it.
- We have already found he did not.