LAW SOCIETY TRIBUNAL
APPEAL DIVISION
Tribunal File No.: 25A-014
BETWEEN:
Brian Anderson Callender
Appellant and respondent in cross-appeal
- and -
Law Society of Ontario
Respondent in appeal and appellant in cross-appeal
Before: Paul Le Vay (chair), Rebecca Durcan, Sophie Martel, Quinn Ross, Eric Whist
Heard: November 3, 2025, by videoconference
Appearances:
Daniel Goldbloom and Brooke MacKenzie, for the appellant
Rhoda Cookhorn and Elaine Strosberg, for the respondent in appeal
Summary:
CALLENDER – Appeal – Cross-Appeal – The Lawyer appealed the Hearing Division’s decision which permitted him to surrender his licence – The Law Society cross-appealed – The panel concluded that neither party identified an error in principle or showed that the penalty was clearly unfit nor identified any palpable and overriding error to change the penalty imposed – Both appeal and cross-appeal were dismissed – The parties were invited to make written submissions on costs.
REASONS FOR DECISION
1Sophie Martel (for the panel):– Brian Anderson Callender (the Lawyer) appeals the Hearing Division decision, Law Society of Ontario v Callender, 2025 ONLSTH 33, which concluded that he had engaged in misconduct, including the misappropriation of trust monies, and which granted him permission to surrender his licence.
2The Lawyer appeals the hearing panel’s penalty decision. He submits that the hearing panel misapprehended the exceptional circumstances test and that the penalty should have been a suspension with practice restrictions.
3The Law Society cross appeals on the basis that the panel erred in not revoking the Lawyer’s licence.
4For the following reasons, we dismiss the appeal and the cross-appeal.
FACTUAL BACKGROUND
5The Lawyer was called to the Bar in 2001 and worked in Kingston as a sole practitioner in criminal defence and correctional law. Importantly, in respect of his defence, the Lawyer explained to the hearing panel that he was the only Black criminal lawyer in Kingston.
Professional misconduct
6The Law Society conducted spot audits of the Lawyer’s practice in 2002, 2010 and 2019, which all revealed deficiencies in his books and records. Furthermore, the 2019 audit revealed improper trust account transactions, leading to the authorization of an investigation and later, the conduct application.
7Before the Hearing Division, the Lawyer acknowledged by means of an agreed statement of facts that he did not keep proper books and records, made improper withdrawals from his trust account, and failed to maintain a trust balance sufficient to meet his obligations to his clients.
8The hearing panel found that the Lawyer failed to maintain proper books and records from January 2018 to September 2021, a period of three years and nine months.
9The panel also found that the Lawyer had made six improper withdrawals over the course of 11 months from his trust account totaling $13,100. The Lawyer acknowledged that he was aware of completed unbilled work when he made the improper transfers from trust to his operating and personal accounts. He further admitted that he was reckless as to whether the amounts withdrawn exceeded the unbilled work, which they did by $5,163.20.
10The hearing panel found that the Lawyer had mishandled $7,946.80 by “pre-taking” trust funds prior to delivering an account and had misappropriated $5,163.20 in trust funds (the amount by which the withdrawals exceeded the value of the unbilled work). At para 37 of its reasons, the hearing panel characterized the misappropriation as, “professional misconduct of the most serious nature.” The panel noted that the Lawyer’s actions took place with clear knowledge that they were wrong and that he then attempted to obscure the misappropriation by falsely reporting the transactions as bank errors on his trust reconciliations.
PENALTY
11Since the Lawyer acknowledged the misconduct, the multi-day hearing before the hearing panel focused on evidence and submissions relating to penalty.
12The Lawyer introduced character evidence and an expert report on the challenges faced by Black professionals. He also testified and provided the hearing panel with a letter accepting responsibility for his actions.
13He testified that he had experienced anti-Black racism in his legal career and called an expert who opined that anti-Black racism was likely a significant factor in the Lawyer’s misconduct. He subsequently argued that his experiences warranted a departure from the presumptive penalty of revocation for misappropriation and that his penalty should be a suspension of eight months.
14The hearing panel noted that the Lawyer’s misappropriation of client trust funds engaged the Bolton principle (Bolton v Law Society, [1993] EWCA Civ 32) that certain types of professional misconduct involving proven dishonesty are so serious as to constitute a fundamental breach of the solicitor-client trust relationship and compel revocation of licence. This applies no matter how strong the mitigating factors present.
15The hearing panel wrote that Tribunal jurisprudence establishes that such misconduct compels revocation of licence, absent extraordinary or exceptional circumstances. It then noted that anti-Black racism has been recognized by the Tribunal as a potential exceptional circumstance that may warrant a departure from a presumptive penalty of revocation. It also accepted that the Lawyer had experienced such racism, which likely resulted in him engaging in various behaviours such as detachment, unwillingness to seek help, disengagement and actions to avoid negative consequences or anticipated poor performance. However, it also noted that there were situations where the Lawyer appeared to have been able to overcome such effects.
16The Lawyer pointed to the Tribunal’s decision in Law Society of Ontario v McCullough, 2022 ONLSTH 63, as a precedent. In that case, the panel determined that there were exceptional circumstances in the case of a lawyer who had misappropriated funds and accepted the joint submission of the parties requesting a suspension rather than revocation.
17The hearing panel thoroughly reviewed the exceptional circumstances in the McCullough case. It found that the facts advanced by the Lawyer in the instant case did not rise to the level of the kind of exceptional circumstances found in McCullough. The panel ultimately concluded that the circumstances put forward by the Lawyer as exceptional could not be characterized as so extraordinary and compelling to extend mitigation beyond a permission to resign.
GROUNDS OF APPEAL
Lawyer’s appeal
18The Lawyer submits that the Hearing Division misapplied the exceptional circumstances test set out in Bishop v Law Society of Upper Canada, 2014 ONSC 5057, in two ways.
19First, the panel erred by confining its examination of exceptional circumstances to the anti-Black racism experienced by the Lawyer and failing to consider the extensive additional mitigating factors.
20Second, the panel erred by concluding that because the Lawyer’s circumstances did not rise to the level of those present in McCullough, the Lawyer was not entitled to a suspension for misappropriation. The Lawyer submits that whether one licensee has suffered greater personal misery than another is not the test. Rather, the test set out in Bishop is whether the circumstances “credibly explain the misconduct” or otherwise “clearly obviate the need to provide reassurance to the public of the integrity of the profession.”
21The Lawyer also submits that the hearing panel made one factual error when it found that the Lawyer had taken money from trust from individuals whom he described as being “overwhelmingly marginalized.” The Lawyer submits that the evidence was that he served largely marginalized clients, whose cases were funded by Legal Aid Ontario, which do not involve money going into trust. The Lawyer concedes that this error is not overriding in the sense that the outcome does not turn on it but wishes to have this mischaracterization clarified on appeal. Given the Lawyer’s acceptance that this factual error is not an overriding error, we will not address it other than to set out the Lawyer’s submission in this paragraph.
Law Society’s cross-appeal
22The Law Society submits that the hearing panel erred in finding that there were exceptional circumstances that justified a penalty less than revocation. The Law Society submits that the panel failed to find a connection between the Lawyer’s experience of systemic racism and his service to racialized communities with his misconduct in misappropriating trust funds. As a result, the Law Society submits that it cannot be said that his evidence credibly explained that the misconduct was out of character, why it occurred and why it was unlikely to recur.
STANDARD OF REVIEW
23The standard of review to be applied on appeal is correctness on questions of law; and palpable and overriding error on questions of fact and questions of mixed fact and law where the legal principle is not readily extricable.
24The palpable and overriding error standard is a deferential standard. For the appeal panel to interfere with the hearing panel’s decision, it must find an obvious error in the decision that is determinative of the outcome of the case: Farsi v Da Rocha, 2020 ONCA 92.
25Furthermore, in appeals involving a penalty decision, the standard of review is an error in principle or a clearly unfit penalty: Law Society of Ontario v Guiste, 2025 ONLSTA 17.
26This matter involves an appeal and a cross-appeal of a penalty decision. In their respective factums, the parties generally relied on the standard of review of whether the decision contained an error in principle or was clearly unfit. The Law Society’s factum indicated that the appellate standard of review of a palpable and overriding error on questions of fact and mixed fact and law also applied. These are the standards we have applied.
ANALYSIS
27The Lawyer’s appeal and the Law Society’s cross-appeal focus on the panel’s application of the exceptional circumstances test.
Exceptional circumstances test
28Professional misconduct involving proven dishonesty typically warrants revocation. As noted by the hearing panel, this principle stems from Bolton, where Sir Thomas Bingham stated:
Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced by the solicitor, ordered that he be struck off the Roll of Solicitors.
29Misappropriation of trust funds is professional misconduct of the most serious nature. As described in Law Society of Ontario v Wilkins, 2021 ONLSTA 15, trust and integrity are central to a lawyer’s responsibility in holding money in trust, whether those funds be related to real estate transactions, matrimonial home proceeds, estate assets or client retainers. For this reason, professional misconduct involving misappropriation of trust funds, no matter the amount of misappropriation, typically warrants revocation.
30In Law Society of Upper Canada v Mucha, 2008 ONLSAP 5, a case involving knowing participation in mortgage fraud, the appeal panel concluded that only exceptional circumstances of mitigation could justify a departure from the penalty of revocation. It suggested by way of illustration that there may be compelling psychiatric or psychological evidence that, among other things, credibly indicates not only that the misconduct was out of character and unlikely to recur but explains why it occurred.
31In Bishop, the Divisional Court, citing Mucha, accepted the principle that there is nothing objectionable per se to a profession setting out presumptive penalties for breaches of different types of professional obligations. It also observed that mitigating factors that will amount to exceptional circumstances in any given case are not restricted to only certain types or forms. It added at para 31:
That said, it remains the case that any such factors will normally have to be ones that would rise to the level where it would be obvious to other members of the profession and to the public, that the underlying circumstances of the individual clearly obviated the need to provide reassurance to them of the integrity of the profession.
32In Wilkins, the Appeal Division accepted that they may be cases where underlying circumstances related to discrimination and disadvantage could obviate the need to provide reassurance to the public of the integrity of the profession and overcome the penalty of presumptive revocation.
33The panel in McCullough indicated that the Gladue1 principles may unlock the door to considering possibly departing from the presumptive penalty of revocation and allowing a suspension as an appropriate penalty, but only where the remarkable and extraordinary circumstances of the individual justify it. It added that for this to happen the four primary purposes of penalty must nevertheless be satisfied when exercising compassion in departing from the presumptive penalty.
Did the panel err in disregarding certain evidence as irrelevant to the exceptional circumstances analysis?
34The Lawyer submits that the panel erred when it stated that the many mitigating factors present, which would be highly relevant and bear significant weight in a traditional Aguirre analysis, were irrelevant to the consideration of exceptional circumstances.
35With respect, we disagree. The hearing panel did not conclude that the mitigating factors were irrelevant, nor did they fail to consider all the Aguirre mitigating factors and those relating to the exceptional circumstances of the effects of anti-Black racism.
36The Lawyer relies in part on the panel’s statement at para 104 of its reasons where it stated, “The fact that the amounts misappropriated were not large, were subsequently repaid, and that no loss was ultimately suffered is irrelevant.”
37We are of the view that in the context of the surrounding sentences and paragraphs, the panel was addressing the nature of the misconduct and whether it engaged the Bolton principle, which it held it did at para 111. The hearing panel was not stating that these factors were irrelevant to the entire penalty analysis. Rather, the panel was explaining they were irrelevant to the determination that the misappropriation attracted the presumptive penalty of revocation. This finding was in keeping with Tribunal jurisprudence that even if the amounts are small and that the monies are repaid, misappropriation still compels revocation and that these factors in of themselves do not amount to exceptional circumstances; for example, Law Society of Ontario v Junger, 2023 ONLSTH 123.
38The Lawyer also relies on para 123 of the reasons where, after listing several mitigating circumstances, the panel stated:
These mitigating factors speak well of the Lawyer and are to his credit. They would be highly relevant and bear significant weight in a traditional Aguirre analysis on penalty. However, they do not of themselves constitute exceptional circumstances that provide a basis for any penalty other than termination.
39In our view, the panel clearly and appropriately stated that these factors “of themselves” do not constitute exceptional circumstances. The panel was not stating they were irrelevant but rather that on their own they did not rebut the presumptive penalty of revocation.
40The panel then went on to discuss the exceptional circumstances and at para 145 concluded, “However, we must conclude the exceptional circumstance and mitigation in this matter cannot be characterized as so extraordinary and compelling to extend mitigation beyond a permission to resign.” (emphasis added).
41In our view, it is clear from this statement that the panel not only considered the circumstances related to anti-Black racism, but also the other mitigating factors it had earlier identified, and found that all the circumstances and factors, taken together, were not so exceptional as to extend mitigation beyond permission to resign.
Did the panel err by narrowing the exceptional circumstances analysis to a comparison of his circumstances to those in McCullough?
42The Lawyer submits that the hearing panel erred by finding that a suspension was not an appropriate penalty because the effects of ani-Black racism on him did not rise to the level of the trauma suffered by the licensee in McCullough. The Lawyer submits that McCullough did not create a minimum threshold for the trauma that one must have suffered to be entitled to a suspension for misappropriation. The test is not whether one licensee has suffered greater personal misery than another, but rather whether the circumstances credibly explain the misconduct or otherwise clearly obviate the need to provide reassurance to the public of the integrity of the profession.
43As the panel sets out in para 129 of its reasons, McCullough was a decision relied upon by the Lawyer. It is the only misappropriation case where the Tribunal panel ordered a suspension (along with practice restrictions), rather than revocation of license. Therefore, we find it was appropriate for the panel to carefully consider the facts and circumstances in McCullough and to consider the guidance it could provide to them given the facts and circumstances that they were dealing with in the instant case. The panel highlighted several important differences between Ms. McCullough’s and the Lawyer’s circumstances, including the fact that, unlike in McCullough, this was not a situation where the panel was being asked to approve a joint submission on penalty.
44In our view, a holistic reading of the panel’s reasons does not suggest that the panel applied the facts of McCullough as a minimum threshold for a level of personal trauma required to establish exceptional circumstances. A reading of the entire reasons reveals that the panel considered a variety of factors in its penalty decision, including:
- The seriousness of the misappropriation misconduct, including the fact that it occurred on multiple occasions over 11 months, with clear knowledge that it was wrong and an attempt to obscure the misappropriation (paras 104-105).
- The misconduct included a failure to maintain proper books and records for several years despite earlier reminders and direction to him of the need to maintain proper books and records (paras 106-107).
- The Lawyer had sufficient personal investments available to clear his exhausted business line of credit, such that he had the means to solve his financial dilemma without taking from his trust account (para 109).
- The presence of multiple mitigating factors, some of which were similar to those in McCullough (para 121) and additional mitigating circumstances set out in para 122.
- The acceptance that the Lawyer’s experience of racism, which likely resulted in him engaging in various identified effects (para 126) as well as the fact that the Lawyer had at times been able to overcome such effects (para 127).
- The fact that the public benefits from a diverse legal profession, including Indigenous and Black lawyers, that can meet the needs of racialized communities (para 142).
- The Lawyer’s actions since the filing of the notice of application and the respect of his professional colleagues (para 144).
45Ultimately, the hearing panel concluded that the factors considered were not so extraordinary and compelling as to extend mitigation beyond a permission to resign. While the panel did not expressly restate the Bishop test in its concluding paragraph, it did set it out in para 115 of its reasons and it is apparent from the factors it considered and its differentiation of the facts from those found in McCullough, that it was of the view that the Lawyer’s circumstances were not so exceptional that a suspension, instead of permission to resign, would provide sufficiently clear reassurance to the profession and to members of the public of the integrity of the profession.
Did the panel err in finding exceptional circumstances sufficient to dislodge the presumption of revocation?
46The Law Society submits that the panel erred in finding that there were exceptional circumstances that justified dislodging the presumptive licence termination. It submits that the panel did not accept that there was a connection between the Lawyer’s experience of systemic racism and his decision to misappropriate money when he had other funds available. If there was no connection between his experience of systemic racism and his misconduct, then it could not be said that his evidence credibly explained that his misconduct was out of character, why it occurred or why it was unlikely to recur.
47With respect, we disagree. The panel did accept a connection between the Lawyer’s experience of systemic racism and the misconduct.
48At para 126, the panel stated:
We accept that during his professional career the Lawyer has experienced racism, which likely resulted in him engaging in some of the identified effects described in Dr. Roderique’s thoughtful report. More specifically: detachment, unwillingness to seek help, disengagement, and actions to avoid negative consequences or anticipated poor performance.
49Earlier in its reasons, the panel discussed Dr. Roderique’s opinion, which was, in part, based on her interview of the Lawyer. At paras 69 and 70, it set out her opinion that the Lawyer’s actions and decisions to improperly borrow funds from his trust account instead of admitting his administrative and financial difficulties and seeking assistance were consistent with stereotype threat effects and related phenomena arising from anti-Black racism. The Lawyer found himself in a situation where his actions could have engaged or evoked additional pressure given his position as one of the only Black lawyers in Kingston. His judgement was compromised because he did not want to fail.
50The panel’s acceptance of Dr. Roderique’s opinion, as set out above, is the link it found between the anti-Black racism and the misconduct.
51The panel’s penalty decision of allowing the Lawyer to surrender his licence, which has a similar effect as revocation (albeit with less stigma), is not a clearly unfit penalty in the circumstances of this case.
CONCLUSION
52We conclude that neither party has identified an error in principle or shown that the penalty is clearly unfit in this case of misappropriation. They have also not identified any palpable and overriding error that would have changed the outcome of this penalty decision. We dismiss the appeal and cross-appeal.
53The Law Society is to deliver written submissions on costs within 14 days of the date of these reasons. The Lawyer is to deliver responding written submissions within 28 days of the date of these reasons.
Footnotes
- Gladue reports originated in the criminal justice system in response to the Supreme Court of Canada’s decision in R. v Gladue. Designed to assist the justice system to explore alternatives to incarceration, Gladue reports provide information regarding the unique systemic and background factors that contributed to bringing the individual before the court. While Gladue factors do not dictate a particular sentencing result, they assist the court by providing an important context about the specific offender before the court. The application of Gladue principles is not limited to the criminal context: McCullough at paras 32-33.