Law Society Tribunal

Hearing Division

Date: June 10, 2026 Tribunal File No.: 24H-104

Between: Law Society of Ontario (Applicant)

• and - Mark Elkin (Respondent)

Before: Nicole Treksler (chair), Neha Chugh, Sabita Maraj Heard: March 24, 2026, by videoconference

Appearances: Chad Skinner, for the applicant Lisa Freeman, for the respondent

Summary: ELKIN – Communication – Delay in Payment – Court Conduct – Regulatory Compliance – Integrity – LAWPRO – Much of the misconduct was intentional and ongoing – The Lawyer failed to co-operate with successor counsel, withheld client files and funds, delayed settlement payments, failed to report a potential claim, and breached court and Ministry of Labour orders – The misconduct was serious and affected clients, the court, and employees – While some of his misconduct was serious, other misconduct was at the lower end – The panel was not persuaded that revocation was appropriate – The Lawyer was suspended for seven months – The parties agreed to $15,000 in costs.

Reasons for Decision on Penalty and Costs

1Nicole Treksler (for the panel):– In reasons released following the July 10, 2025, hearing, we found that the respondent lawyer licensee, Mark Elkin, engaged in professional misconduct: 2025 ONLSTH 129.

Background

2We found that the respondent’s conduct constituted professional misconduct with respect to particulars 1-5 and 7 as indicated below:

• not co-operating with the lawyer who took over the file (particular 2);
• not returning clients files and trust funds when requested (particulars 1, 3, and 4);
• delaying the release of settlement funds to a client (particular 5); and
• failing to self-report a potential claim to Lawyer’s Professional Indemnity (LawPRO) (particular 7);

3We further found that the respondent’s conduct relating to particulars 6, 8, 10, and 12 also constituted professional misconduct as outlined below:

• not treating the Ontario Court Justice with fairness, courtesy and respect and not complying with the court’s orders (particular 6); and
• not following an order of the Ministry of Labour to pay outstanding employee wages (particulars 8, 10 and 12).

4In addition, we determined that the respondent acted without integrity regarding particulars 6, 8, 10 and 12, contrary to Rule 2.1-1 of the Rules of Professional Conduct (the Rules).

5The Law Society withdrew particulars 9, 11, and 13.

6We have now heard evidence and submissions on the appropriate penalty and costs arising from the respondent’s proven professional misconduct.

Positions on Penalty

7The parties did not agree on penalty.

8The Law Society submitted that the respondent’s licence should be revoked, citing the deliberate and repetitive nature of the misconduct eroding confidence in the profession and protection of the public.

9The respondent submits that a suspension of one to three months is appropriate. He relies on eight character references and one professional reference, three of whom testified in support of the position that his misconduct was out of character. This included the testimony of a social worker, Eden Dales, who opined that the respondent’s behaviour has changed and presents a low risk of reoccurrence.

10We are not persuaded that revocation is warranted. While the misconduct is serious, the respondent’s rehabilitation efforts and the applicable jurisprudence do not support that outcome. Revocation would be disproportionate in the circumstances and is not necessary to protect the public or maintain confidence in the profession. However, a suspension of one to three months would not adequately reflect the seriousness of the misconduct or meet the objectives of general and specific deterrence.

11We conclude that a suspension of seven months is the appropriate penalty.

Position on Costs

12The parties made joint submissions on costs in the amount of $15,000. We accept this submission, noting issues with the docketing of the investigator’s time, which reduced costs.

13Our reasons follow.

Penalty

Analysis

14A penalty is not intended to be punitive. It is aimed at general and specific deterrence, rehabilitation or restitution, and most importantly ensuring public confidence in the regulation and integrity of the profession: Law Society of Upper Canada v Strug, 2008 ONLSHP 88 at paras 3-8, Bolton v Law Society, [1993] EWCA Civ 32 at para 15, and Law Society of Upper Canada v Walton, 2015 ONLSTA 8 at para 29.

15The panel in Chijindu, 2020 ONLSTH 55 at para 12, referenced the need to consider the nature and duration of the misconduct and noted that, the more serious the misconduct, the greater the penalty. The correlation between seriousness of misconduct and penalty is informed by considerations (also known as Aguirre [2007 ONLSHP 46] factors), such as the licensee’s prior conduct, expressions of remorse, co-operation with the Law Society in obviating the need to prove some or all allegations, the presence or absence of extenuating circumstances, and whether the misconduct is out of character.

16The next sections will go through the Aguirre factors.

Licensee’s prior conduct

17The respondent has practised law for approximately 35 years. He had no disciplinary history until 2022, when a finding of professional misconduct was made for failing to co-operate with eight Law Society investigations: 2022 ONLSTH 104. Those investigations ultimately gave rise to this application.

18The absence of a disciplinary record over a lengthy period of practice may, in some circumstances, support an inference that the misconduct is out of character. However, because the 2022 finding is relatively recent, this factor carries limited weight in the present case.

19In these circumstances, we place only modest weight on this as a mitigating factor.

Expressions of remorse

20The respondent expressed remorse for his conduct and addressed the panel directly at both hearings. However, his remarks were often coupled with explanations that tended to justify his behaviour rather than provide context. For example, he stated that he felt hurt and betrayed by his former employee, which he offered to explain his decision to withhold her pay. He also indicated that he did not follow a court order because he was accustomed to resolving matters directly with opposing counsel, without court involvement.

21We found that these explanations, in substance, functioned as justification rather than providing context.

22We accept that context can assist in understanding how misconduct occurred. There is, however, a clear distinction between context and justification. Context may explain behaviour; justification risks minimizing responsibility for it.

23In this case, the respondent’s explanations reduced the weight we could place on his expressions of remorse. While some remorse was evident, we were not satisfied that the respondent demonstrated full insight into the seriousness of his misconduct or its impact on others.

24Accordingly, we assign modest mitigating weight to this factor.

Co-operation with the Law Society

25The respondent co-operated with the Law Society by entering into an agreed statement of facts, which shortened the hearing time considerably.

26We assign considerable weight to this as a mitigating factor.

Extent and duration of the misconduct

27The conduct occurred between 2019 and 2022, for about 2.5 years, and was repetitive and intentional. For example, he withheld pay from his employees, ignored the Labour of Ministry order to repay them, and only did so when his own wages were garnished. He also ignored court orders and gave assurances that he would comply, but failed to do so.

28These were not isolated incidents where there was a brief lapse of judgement. His actions were prolonged and caused harm to his clients, employees and to the administration of justice.

29This is a significant aggravating factor.

Extenuating circumstances

30The respondent submitted that he was very busy with his practice, and during the pandemic many administrative matters were not dealt with promptly.

31We accept that the pandemic created challenges for many practitioners and may have contributed to disorganization or delayed responsiveness in some circumstances.

32However, the misconduct in this matter extended beyond inadvertence or delay. The respondent failed to transfer files to successor counsel, failed to remit trust funds promptly, failed to comply with court orders, and failed to comply with a Ministry of Labour order.

33The evidence shows that much of the misconduct was intentional and ongoing. Accordingly, we assign no mitigating weight to these circumstances.

Is the misconduct out-of-character or, conversely, likely to reoccur

34The respondent filed eight written character references and one written professional reference from a social worker, Ms. Dale.

35The written references consistently described the respondent as hardworking, community-minded, and generally honest and professional in his dealings.

36The references also indicated that the conduct was inconsistent with the respondent’s usual character and professional reputation.

37Two references, Sherilyn Pickering and Michael Babcock, testified and we found them to be credible. Both spoke to the respondent’s character based on their professional dealings with him and indicated that the conduct was inconsistent with his usual behaviour. However, their experience with the respondent did not extend to the context in which the misconduct occurred, which limits the weight that can be placed on their evidence.

38Ms. Dale testified that she has worked extensively with the respondent since December 2024. She indicated that the respondent attends weekly sessions, has engaged in reflective work, and has developed strategies to manage conflict and stress more effectively. In her view, the risk of recurrence is low.

39The Law Society submitted that Ms. Dale’s evidence should be afforded limited weight because she is the respondent’s treating therapist, did not independently verify the information provided to her, and did not conduct a standardized risk assessment.

40We accept that Ms. Dale’s evidence was not fully independent and cannot conclusively establish that the misconduct will not recur. However, we recognize that the respondent has taken steps towards rehabilitation and self-reflection.

41We find that the misconduct was inconsistent with the respondent’s longstanding professional history, as demonstrated through his references and absence of discipline history until recently. At the same time, we note that the respondent’s conduct between 2019 and 2022 fell below the conduct required of a lawyer.

42Therefore, we assign some mitigating weight to the respondent’s effort to rehabilitate his behaviour, and accept that, other than the period between 2019 and 2022, his conduct has generally been consistent with the positive character evidence before us.

Conclusion

43While the misconduct was serious, we are not persuaded that revocation is the appropriate penalty.

44As noted in Bishop v Law Society of Upper Canada, 2014 ONSC 5057 at para 20, no two disciplinary cases are identical and there is no “scientific precision” in determining penalty. Penalty remains a contextual and fact-specific exercise requiring the balancing of aggravating and mitigating factors.

45Nevertheless, comparable cases remain helpful ensuring consistency in outcomes.

46Some aspects of the respondent’s misconduct fall on the lower end of the spectrum of integrity-related misconduct. These include failing to return client files promptly, delays in remitting trust funds, failing to co-operate with successor counsel, and failing to self-report a potential LAWPRO claim.

47However, other aspects of the misconduct are considerably more serious. The respondent failed to comply with court orders; failed to comply with a Ministry of Labour order directing payment of wages; and failed to treat the court with the degree of fairness, courtesy, and respect required of a licensee. We also found that the respondent acted without integrity.

48The Tribunal has generally reserved revocation for cases involving serious dishonesty, misappropriation of client funds, breaches of trust conditions, or persistent misconduct demonstrating that the licensee is no longer governable. All of these instances involve an absence or deterioration of integrity.

49In Chijindu, the lawyer mishandled client funds, failed to comply with court orders requiring repayment, acted without integrity, and demonstrated little remorse or insight. His licence was revoked.

50In Wickham, 2023 ONLSTH 53, the lawyer breached re-admission conditions, mishandled client funds, charged unreasonable fees, and acted without integrity. His licence was also revoked.

51The respondent’s misconduct, while serious, does not involve misappropriation of client funds, fraudulent conduct, or breaches of re‑admission conditions. While we acknowledge that the former are not only the type of cases that invite revocation, as noted in Walton, 2015 ONLSTA 8 at para 40, revocation is not reserved for a complete loss of integrity. We were of the view that would be disproportionate in the circumstances weighing the misconduct along with mitigating factors.

52At the same time, the respondent’s proposed suspension of one to three months would not adequately address the seriousness and duration of the misconduct, particularly the repeated disregard for court and Ministry orders and the finding that he acted without integrity.

53In Neinstein, 2014 ONLSTH 92, the lawyer failed to comply with court orders, filed a false affidavit, and engaged in conflict-related misconduct. A six-month suspension was imposed, taking into account the lawyer’s prior good character and expressions of remorse.

54In Sherman, 2026 ONLSTH 8, the lawyer failed to comply with a court order, filed a false acknowledgement of service, improperly contacted a member of the judiciary, and acted in a conflict of interest. He co-operated with the Law Society and showed some remorse, but had a discipline history. A six-month suspension was imposed.

55The respondent’s misconduct falls below the revocation cases in seriousness but is more serious than the misconduct in the six-month suspension cases due to the sustained and repetitive nature of the conduct, the treatment of employees and a Court Justice, the disregard of Ministry and court orders, and the finding of lack of integrity.

56We have also considered the respondent’s rehabilitation efforts, co‑operation with the Law Society, and the evidence that the misconduct was out of character.

57Balancing all of these considerations, we conclude that a seven-month suspension appropriately reflects the seriousness of the misconduct while recognizing the respondent’s mitigating circumstances and rehabilitation efforts.

58In our view, a seven-month suspension appropriately addresses specific and general deterrence, maintains public confidence in the profession, and adequately protects the public.

Costs

59The parties made agreed to costs of $15,000.

60The Law Society’s bill of costs claimed $110,402.50, compromising $21,482.50 for the work of the discipline counsel and $88,920 for the work of the forensic auditor.

61Investigator fees are typically included in costs: Law Society of Ontario v Singh, 2020 ONLSTH 77 at paras 13-22; Law Society of Ontario v Deokaran, 2024 ONLSTH 136 at paras 36-37; and Law Society of Ontario v Ross, 2020 ONLSTH 106 at paras 21-22.

62However, in this case, the investigator’s time was not docketed, which means no proper time records were maintained, resulting in an estimated allocation of their hours.

63Jurisprudence supports that costs is best based on docketed time: Law Society of Upper Canada v Talarico, 2015 ONLSTH 222 at para 71, and Law Society of Upper Canada v Osborne, 2015 ONSLTH 25 at para 45.

64Accordingly, the Law Society based its claim on the discipline’s counsel work, $21,482.50, with a modest reduction of over $5,000. We accept the well-established principle that the professions should not bear the costs of disciplinary proceedings: Law Society of Upper Canada v Baker, 2006 ONLSHP 21 at para 12. Tribunal jurisprudence also recognizes that costs may be reduced where a respondent has been co-operative or where there are other mitigating circumstances.

65In this matter, the respondent was co-operative throughout the proceedings.

66Further, there was a joint submission on costs, and there is no evidence before us that is “unhinged”; it is, in fact, consistent with Tribunal precedent.

67Therefore, we accept the amount on costs proposed by the parties.

Order

68We order the following:

1. The respondent’s licence to practise law in Ontario shall be suspended for seven months, beginning 14 days after the date of the decision.
2. The respondent shall comply fully with the terms of the Law Society’s Guidelines for Lawyers Who Are Suspended or Who Have Given an Undertaking Not to Practise while suspended pursuant to this order.
3. The respondent shall pay costs to the Law Society in the amount of $15,000, beginning 14 days after the date of the decision. This deadline may be extended by the Law Society in accordance with the By-Laws. Interest shall accrue on any unpaid part of those costs at a rate of 4%.