LAW SOCIETY TRIBUNAL
APPEAL DIVISION
Tribunal File No.: 25A-010
BETWEEN:
Andrew Gordon Rogerson
Appellant
- and -
Law Society of Ontario
Respondent in appeal
Before: Margaret Leighton (chair), Pam Hrick, Karen Hulan, Stephen Rotstein, Eric Whist
Heard: April 23, 2026, by videoconference
Appearances:
Appellant, self-represented
Shannon McDunnough, for the respondent in appeal
Summary:
ROGERSON – Appeal – Interlocutory Suspension – The Lawyer’s last-minute materials were not accepted – The test for fresh evidence was not met – The appeal panel found that the interlocutory suspension hearing was fair and the hearing panel’s reasons were justifiable and intelligible – The appeal was dismissed.
REASONS FOR DECISION
1Margaret Leighton (for the panel):– This matter began when the Supreme Court of the Northwest Territories directed that a copy of its March 10, 2025 decision, making very serious findings against Andrew Gordon Rogerson, the Lawyer, be sent to the Law Society of Ontario: Marlowe v Barlas, 2025 NWTSC 12 (Marlowe).
2After receiving the Marlowe decision, the Law Society authorized an investigation into whether the Lawyer had engaged in professional misconduct and/or conduct unbecoming a licensee. A notice of motion seeking to suspend or restrict the Lawyer’s licence to practise law on an interlocutory basis was filed on May 5, 2025.
3The motion was successful. The hearing panel concluded that there were reasonable grounds to believe that the Lawyer posed a significant risk to the public and to the public’s interest in the administration of justice if an interlocutory order suspending or restricting his licence was not made. The Lawyer’s licence to practise law was suspended on an interlocutory basis: Law Society of Ontario v Rogerson, 2025 ONLSTH 103 (Suspension Decision).
4The Lawyer appeals the Suspension Decision. He filed three motions in the appeal: to disqualify the Law Society’s counsel, for the admission of fresh evidence, and to stay the suspension. The motion to disqualify counsel was dismissed on October 27, 2025 with reasons issued on January 22, 2026: Law Society of Ontario v Rogerson, 2026 ONLSTA 2 (Disqualification Decision).
DECISION
5This was a meritless appeal and it is dismissed. We find the suspension hearing was fair and the panel’s reasons ordering a suspension justifiable and intelligible.
6In these reasons we first explain why we refused to accept several hundred pages of materials the Lawyer delivered on the morning of the appeal hearing. Next, we provide our reasons for dismissing the motion to adduce fresh evidence and denying a stay of the suspension order.
7We then turn to the issues on appeal and briefly address the standard of review. The Lawyer raised 12 grounds of appeal. We have grouped the grounds relating to the panel’s conduct of the hearing together. The grounds which concern conduct of Law Society counsel and the Law Society investigation are considered in a second grouping.
LATE FILED MATERIALS
8The Lawyer was not present at the start of the appeal hearing. When he did appear, he apologised and explained that he had been attempting to upload additional documents which he had hoped to have finished earlier but he had “miscalculated.” We were advised that at least one of the documents was still incomplete. The Lawyer attributed the late filing to medical conditions which affect the speed at which he works, that he can no longer afford to pay support staff or associates, and the ongoing stress of financial difficulties and demands of other litigation matters. He confirmed that he was not requesting an adjournment and conceded that the late filing was not fair to the Law Society.
9The Law Society objected. Counsel argued that the Lawyer had not advised either the Tribunal or the Law Society that he wished to file additional materials. She noted the Lawyer had also attended the suspension hearing without having filed his materials by the date directed, which suggested a pattern of behaviour. Further, she argued that the appeal was commenced many months ago and it would be completely unfair to expect her to review hundreds of pages at the last minute. Counsel advised that, if we accepted the late filings, she would need to seek instructions on whether to seek an adjournment.
Ruling
10The Lawyer had since September 2025 to prepare for this appeal. He provided no evidence to support his assertions that his medical issues and lack of support staff impeded his ability to file these materials in a timely manner in the intervening months since commencing his appeal.
11Accepting volumes of materials on the day of an appeal hearing would be inconsistent with Rules 17-19 of the Tribunal’s Rules of Practice and Procedure. These rules establish the order, timing, format and content of appeal materials, and work together with the provisions of Rule 1.1 which promote efficient processes and proceedings. We agree admission of these late materials would be manifestly unfair to the Law Society.
12A review of the record in this matter confirms a pattern of late or last-minute filings and lack of preparation on the part of the Lawyer. The Lawyer failed to perfect this appeal on time and only met this very basic obligation after the Tribunal expended considerable case management time and effort. The hearing of the stay and fresh evidence motions was adjourned because the Lawyer had not completed his brief of materials to be admitted as fresh evidence as required by Rule 18.2. That document remains outstanding.
13The Lawyer did not request an adjournment. If had he done so, the request would have been denied. In the absence of any evidence of exceptional circumstances, a last-minute adjournment of scheduled hearing dates is inconsistent with Rule 6.3. An adjournment, which would further delay the resolution of this appeal, might also be seen as rewarding a pattern of conduct which verges on an abuse of process.
14For these reasons, we refused to admit the late-filed materials.
THE MOTIONS
Test for admission of fresh evidence not met
15Rule 18.2 requires a party seeking to produce fresh evidence to segregate and file copies of the proposed fresh evidence in advance of the motion. This is necessary to maintain the integrity of the Tribunal’s appeal record.
16The Lawyer failed to comply with this Rule. That, in itself, is a sufficient basis to dismiss the motion when the Lawyer provided no explanation for his failure to comply or any reason the Rule should be waived. However, in the absence of an objection from the Law Society, we heard the motion.
17Three documents listed in the Lawyer’s September 12, 2025 notice of motion for fresh evidence and a stay, and revised September 24, 2025, were not part of the record below:
“Affidavit of Andrew Rogerson - even date.” This is a lengthy affidavit sworn September 24, 2025. It was referred to but not included in the September 12 motion record. It is found at tab 4 of the September 24 revised motion record.
“Licensee COMPLETED SUBMISSIONS_12-JUL-2025”. These are the written submissions filed with the Tribunal on July 13, 2025 which were not accepted by the hearing panel. They are included at tab 9 of the Lawyer’s revised motion record.
“Licensee Incomplete.” These appear to be the submissions the Lawyer filed on July 7, 2025 as permitted by the hearing panel.
18In oral submissions the Lawyer also asked that we admit a second lengthy affidavit he prepared sometime late in 2025. The front page indicates “sworn January… 2026” while the jurat is dated “December …, 2025.” This affidavit is incomplete and unsworn. The Lawyer also sought to introduce copies of emails to and from the Tribunal office concerning the timing and release of the hearing panel’s order and reasons. Some of these are contained at tab 2 of the Law Society’s motion record responding to the stay.
19In Afolabi v Law Society of Ontario, 2025 ONCA 257 at para 50, the Court of Appeal confirmed that fresh evidence will only be admissible on an appeal where it:
(1) could not, by the exercise of due diligence, have been available at the first instance hearing;
(2) is relevant, in that it bears on a decisive or potentially decisive issue;
(3) is credible, in the sense that it is reasonably capable of belief; and
if believed, could have affected the result below. (citations omitted)
20Turning to the documents identified in his motion record, the July 13 submissions are just that: submissions. They are not evidence and cannot be converted into evidence through this motion.
21The September 24, 2025 affidavit is extremely lengthy and very difficult to follow. For the most part it contains unfocused argument rather than evidence. The Lawyer did not specifically identify any portions of it which he wished to introduce as fresh evidence or argue how it satisfied the fresh evidence test. To the extent that it contains relevant evidence, this either relates to or pre-dates events occurring prior to the hearing. With reasonable diligence, the Lawyer could have provided this evidence to the hearing panel.
22The second affidavit suffers from the same coherency and cogency flaws present in the September 24 affidavit. Further, it is inherently unreliable because it is unsworn. On its face it does not meet the third branch of the fresh evidence test.
23The emails between the Lawyer and the Tribunal office concerning the timing of the release of the panel’s order have no bearing on the issues decided by the hearing panel. They would not have affected the result.
24In summary, the Lawyer has not satisfied any branch of the test for the admission of fresh evidence. The motion for fresh evidence is dismissed.
25Given this ruling, none of these documents form part of the Tribunal’s appeal record. However, as the unsworn affidavit was considered during proceeding management conferences and in the parties’ argument on the stay we agreed to mark it as an exhibit on the motion for the stay. It is part of the record for that limited purpose.
Stay refused
26We reserved our decision on both the stay and the appeal. After deliberating we dismissed the request for stay by order issued April 23, 2026.
27The Law Society’s motion for an interlocutory order alleged, among other things, misappropriation and multiple breaches of court orders. The allegations are extremely serious. The grounds of appeal advanced by the Lawyer were weak. The relevant public interests include avoiding harm to members of the public and maintaining public confidence in the administration of justice. While we accept the Lawyer has experienced financial and professional consequences as a result of the suspension, he provided no evidence to support his claim of irreparable harm. In these circumstances, the balance of convenience did not favour a stay pending appeal.
THE APPEAL
The Suspension Decision
28In Marlowe the Lawyer was found to have:
Accepted $90,000 in funds when he knew the funds were the subject of an application for a Mareva order. The order took effect a few hours after the transfer was made.
Removed the entire restrained amount from his trust account without rendering accounts for substantial legal work performed and as a contrivance to justify draining the retainer.
Refused to return the restrained funds.
Facilitated the shipment of more than $1 million worth of gold and silver bullion in his former client’s possession from the Northwest Territories to his offices in Ontario, in knowing breach of the Mareva order.
Failed to comply with other court orders.
Engaged in a course of obstructionist conduct in response to efforts to have him account for or return the retainer.
Made a sexist comment to opposing counsel.
29Having regard to the court’s findings, the hearing panel concluded that there were reasonable grounds to believe that the Lawyer posed a significant risk to the public and to the public interest in the administration of justice if an interlocutory order suspending or restricting his licence was not made.
30The panel found:
There is no accounting for $80,000 of the $90,000 retainer transferred to the Lawyer from his former client. This provides reasonable grounds to believe that the Lawyer misappropriated or misapplied trust funds: para 46.
The Lawyer’s apparent defiance of the Mareva order has the potential to also victimize the First Nation to whom the funds in question allegedly belonged. This will depend on the outcome of the litigation between the Lawyer’s former client and the First Nation: para 47.
If it is proven that the Lawyer acted without any instructions from his client, then this also represents a significant risk to the public, and his own clients in particular, because seeking and following instructions is fundamental to the solicitor-client relationship: para 48.
If the Lawyer’s interactions with opposing counsel are found to have been sexist, this would be contrary to the Rules of Professional Conduct and present a risk to the public: para 49.
The court found the Lawyer knowingly breached a Mareva order and ordered him to repay the $90,000 immediately. The court’s order has not been stayed, yet the Lawyer has not complied with it. The court also found the Lawyer obstructed the hearing process. These allegations raise a clear risk to the public interest in the administration of justice. If proven, they would demonstrate a persistent defiance of a lawyer’s proper role: paras 52-54.
31The hearing panel went on to consider whether the risk of harm identified above could be addressed by restrictions rather than a suspension. It concluded at para 76 that:
In these circumstances, restrictions on the respondent’s licence would be inadequate. The respondent’s integrity and willingness to comply with his professional obligations are in serious issue. We do not see restrictions that will sufficiently address the risks that we have found. If ordered, we cannot be confident that restrictions will be honoured. The protection of the public and the public interest in the administration of justice can only be ensured by suspending the respondent’s licence.
Grounds of appeal
32The notice of appeal lists the following grounds of appeal (all errors in the original):
The panel failed to accommodate the needs of disabled appellant adequately or at all.
The panel failed to properly exercise its discretion to grant a brief adjournment either at all or with the condition volunteered by the appellant of the adjournment being peremptory upon the delivery off a factum on the next working day. In denying such adjournment, the panel failed to take relevant factors into account including the disability accommodation needs of the appellant and the need to ensure equality of arms.
Further it improperly took into account factors including a rigid desire to maintain a fixture and ensure that the appellant was visited with consequences of late compliance.
The panel adopted a partisan and hostile attitude throughout from which actual/perceived bias may reasonably be inferred.
The panel, particularly the chair, engaged in interruptions, interjections, and undertook questioning of the sole witness for the Law Society to such a degree as to make it possible for the appellant to present his case.
Further, the cross examination by the chair aligned the panel directly with the law society but also le to evidence being presented in a highly prejudicial manner.
The prosecutor frequently broke the convention applicable to a Minister of Justice that Law Society prosecutors are required to adhere to.
The prosecutor misled the court on numerous occasions.
The panel purported to invert the onus of proof.
The prosecutor, being authorised to lay charges including an alternative and lesser disposition, refused to address on such.
The Law Society investigation was so corrupted as to render this and the evidence it produced as unsafe, unsatisfactory and an abuse of process.
Bringing the administration of justice into disrepute: tribunal failing to read or act upon Appellants detailed submissions, when it was easy so to do, both logistically and legally, as no order had been was issued, and allowing over three weeks to pass: with submissions metaphorically, sitting with the tribunal, before issuing order and reasons, with no reference to the said submissions and notifying the parties.
33The Lawyer added a further ground in oral argument. He asserted that the hearing panel erred by misquoting a finding in Marlowe and then relying on that misquote to support its finding.
Issues on appeal
34The Lawyer did not articulate the issues on appeal in his first factum filed September 12 or the revised factum filed September 24. Based on the grounds of appeal we understand the issues to be:
Was the Lawyer deprived of procedural fairness?
Did the hearing panel reverse the onus of proof?
Did the hearing panel err in interpreting and applying a portion of the Marlowe decision?
Standard of review
35The standard of review on appeals from the hearing division is correctness on questions of law. The standard of palpable and overriding error applies to review of questions of mixed fact and law: Law Society of Ontario v Barnwell, 2024 ONLSTA 15 at paras 51-54.
36The grounds of appeal allege numerous breaches of procedural fairness. These are reviewed for correctness. The appellate tribunal must assess the procedures and safeguards required by the particular situation in order to determine whether the decision-making procedure was fair having regard to all the circumstances: Afolabi, at para 60.
37The allegation that the hearing panel “inverted the onus” and therefore erred in law is also reviewed on the correctness standard.
38The hearing panel’s “misquote” of Marlowe is an error of mixed fact and law to which the standard of palpable and overriding error applies.
CONDUCT OF THE HEARING PANEL
Adjournment and Accommodation (Grounds 1-3)
39Grounds:
Panel failed to accommodate the needs of disabled appellant.
Panel failed to properly exercise its discretion to grant a brief adjournment.
Panel improperly took into account factors including the rigid desire to maintain a fixture and ensure that the appellant was visited with consequences of late compliance.
40We understand these grounds relate to the hearing panel’s refusal to adjourn the July 4, 2025 hearing. The Lawyer did not address these grounds in any depth during his oral argument or in either the initial factum or revised factum. The Lawyer cites Law Society of Upper Canada v Igbinosun, 2009 ONCA 484, but did not identify the factors he relied on in support of this argument.
41The Lawyer’s contentions must be understood in the context of the entire proceeding. The Law Society filed its notice of motion on May 5, 2025. The hearing was scheduled to commence on June 19, 2025. On June 16, 2025, the Lawyer was granted an adjournment to allow him further time to prepare. The Tribunal accepted that the Lawyer had medical conditions which affect the speed at which he is able to work. The adjournment was specifically granted to accommodate his disability.
42The hearing was rescheduled for July 4, 2025. The Lawyer was directed to file any evidence on which he wished to rely by July 2, 2025. He agreed that he would be able to meet that deadline. He did not. Instead, he appeared at the hearing on Friday, July 4, and requested another adjournment. He wanted to speak to the investigator and more time to complete a responding factum. He told the panel he would be able to have his factum completed by the following Monday.
43The adjournment was refused. The hearing panel noted that the Lawyer had known about, and had time to prepare for the motion, since early May. He had already been given additional time to prepare as an accommodation of his medical condition.
44Despite refusing the adjournment, the hearing panel granted the Lawyer two very significant indulgences. He was allowed to file his materials, more than 700 pages, out of time and over the objection of the Law Society. And, instead of being required to make final argument orally at the hearing, the Lawyer was permitted to use the weekend to prepare written submissions and file them on the following Monday. This, in effect, gave him what he had been seeking: additional time to provide written argument responding to the Law Society’s motion.
45The hearing panel’s decision reflects a careful balancing of the need to complete hearings in a timely manner while also ensuring fairness to a participant with disabilities. There was no unfairness in proceeding with the scheduled hearing while granting the Lawyer the additional time he had requested to provide a written argument. There is no evidence to support the Lawyer’s claim that the Tribunal did not reasonably accommodate his medical condition.
46We do not give effect to these grounds of appeal.
Bias/interference with cross-examination (Grounds 4-6)
47Grounds:
The panel adopted a partisan and hostile attitude throughout from which actual/perceived bias may reasonably be inferred.
The panel, particularly the chair, engaged in interruptions, interjections, and undertook questioning of the sole witness for the Law Society to such a degree as to make it impossible for the appellant to present his case.
Cross examination by the chair aligned the panel directly with the Law Society but also to evidence being presented in a highly prejudicial manner.
48The Lawyer was highly critical of the panel chair’s conduct of the hearing. He characterised the panel chair’s questions as cross-examination and the hearing as a kangaroo court. He described the panel chair “jumping in after only a few seconds” and “taking over.” In his view this resulted in an “abject denial” of his rights. Asked what questions the hearing panel had prevented him from putting to the witness and how the conduct of the proceeding was procedurally unfair, he responded that he had been subjected to a regime of checking every question. This, he argued, “vitiates the entire proceeding.”
49We carefully reviewed the transcript and do not accept that the panel chair’s interjections were unreasonable, unnecessary or unfair.
50The test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly: Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at para 20. There is a strong presumption of adjudicative impartiality that is not easily displaced: Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30. The burden of demonstrating real or perceived bias requires cogent evidence. Mere suspicion is not sufficient: Law Society of Ontario v Diamond, 2024 ONLSTA 8 at para 44.
51Modern administrative proceedings require adjudicators to be actively engaged in the hearing. Hearing time and adjudicative resources are limited. Courts and tribunals must ensure they are used in a manner proportionate to the issues in dispute: Hyrniak v Maudlin, 2014 SCC 7.
52At this Tribunal, proportionality means that, while remaining scrupulously fair, proceedings must proceed in an organised manner focussing on the evidence relevant to the issues in dispute. As the Appeal Panel noted in Law Society of Upper Canada v DeMerchant, 2017 ONLSTA 5 at para 25:
Without proportionate hearings, issues of public protection remain unresolved and complainants do not see a timely conclusion to their issues. The licensee remains under a cloud of unresolved allegations for too long. The professions may lose public confidence. Financial costs to the parties and the Tribunal are more than they should be.
53The principle of proportionality is incorporated into the Tribunal’s practices and procedures. Rule 1 of the Rules of Practice and Procedure identifies timely determination of proceedings and ensuring efficiency of proceedings as among the purposes of the Rules. Rule 7 endorses the use of active case management throughout proceedings. Rule 11.9 empowers hearing panels to intervene and stop inappropriate, irrelevant or improper questioning or testimony.
54This is the context in which the Lawyer’s allegations of bias and overstepping must be understood.
Transcript review
55The Lawyer began his cross-examination by asking the investigator a number of questions about his record-keeping methods. The panel chair’s initial intervention was an attempt to clarify a very long-winded question.
Q. Okay. So, when I started practicing, we used to have paper files. We would do things on it then stick a blue card on the top saying B/U three weeks or a date. Somebody would take that file away, file it in a huge, cavernous place and then on that date somebody in the dead of night would bring it back to your desk for attention. Now that, presumably – that’s the basis of I think the tickler system, things like that. So, do you – if you – so, you can see what I did in – on time back as – that was my bring up system. So, I send a letter out to–
THE CHAIR: Mr. Rogerson, perhaps I can just shorten this by – is the essence of your question whether Mr. Kozdas has a bring forward system?
MR. ROGERSON: Yeah. Yeah.
THE CHAIR: Okay. Mr. Kozdas, can you answer that?
56The Lawyer then questioned the investigator about his tickler system. This exchange continued for four pages of transcript at which point the panel chair intervened to politely ask the Lawyer to explain its relevance.
57The witness was excused and the Lawyer explained he was trying to understand who designed the investigator’s tickler system and, second, why the investigator did not attempt to contact him by email. The panel chair responded:
Well, why don’t you just ask him that question? The mechanics behind it are immaterial. Why don’t you just ask him that question, and we can then move on.
58The Lawyer characterises what followed as the panel chair “arguing with me.” We disagree.
MR. ROGERSON: So, what I’m asking – and there are two things that arise from this. If the limit of his communication is the last letter or whatever it was, my question is why did you not do something else to contact him. The reason I’m asking that is the Law Society have made great play of the fact that I haven’t made contact with them. Well, you know – so, that’s the first question. The second – the inference that you, sir – the panel may reasonably draw depending on the answer is this: if this man is using some cockeyed system of three different things that he’s – two of which he made up himself and sticky notes – is he confused in other ways? So, those are the two legitimate questions in my submission that arise from that.
THE CHAIR: Well, you know, the – as I said before, I think in our view the mechanics are immaterial. But what’s – you know, the material question is whether or not, beyond what’s already in the record, he made efforts to communicate with you. So, I’m going to direct you to put that question to him, and we’ll bypass the whole issue of the – what mechanics he uses to remind himself of due dates, all right?
MR. ROGERSON: And I – I don’t want to – you've ruled, and I’m bound –
THE CHAIR: Yeah.
MR. ROGERSON: – by that ruling. But I seek clarification on this: certainly, I will ask him, but I do want to know who devised this three mode plus sticky notes.
THE CHAIR: Well – well, you’ve already heard that some of it is built into LSO Connects; correct?
MR. ROGERSON: I don’t know. I don’t know from what he – I want him to tell me if he is following standing orders, instructions or what is being given to him, and if not, why not.
THE CHAIR: All right. Well, ask – you can ask him that question, whether this is the standard practice of a Law Society investigator, and – but beyond that, the only issue is really whether he made other attempts, over and above the ones that are in the record, to communicate with you.
MR. ROGERSON: Yeah.
THE CHAIR: So, let’s – I’m asking you to confine yourself to those questions, and we’ll bring the witness back in, thank you.
59This exchange shows the panel chair providing the Lawyer with ample time to make his submissions, considering them, making an initial direction, listening to his additional concerns, and then modifying his initial ruling to address them.
60The hearing continued. After several more questions, the panel chair interjected to note that the Lawyer was deviating from the earlier ruling and had only asked one of the two permitted questions. The panel chair put the outstanding question to the witness. It was answered. The Lawyer was directed to move on.
61The transcript of the cross-examination continues for several more pages before Law Society counsel objects to the relevance of a question. After some further discussion, and despite not being satisfied the question is relevant, the panel chair asked the witness the question. The Lawyer did not object or take issue with the way the question was framed.
62A short time later, a panel member intervened to express his concern that the Lawyer may run out of time to complete his examination. These comments are set out at paragraph 72 where we consider the alleged reversal of onus.
63A few minutes later, in responding to an objection from Law Society counsel, the panel chair said:
THE CHAIR: I think the – that’s – that's certainly a concern. But the larger concern, Mr. Rogerson, is the one that Mr. Mercer has flagged for you, okay? You know, what we’re looking at here today is whether we have reasonable grounds to believe that there’s a risk of significant harm to the public and the public interest in the administration of justice if you continue to practise, right? That’s what we're looking at. And I say this in large part for your own benefit: you’re focussing on stuff which is really tangential in relation to that core question. And if you continue to do that, you’re doing it at your own expense because we’re – we will conclude the hearing today, and if you’ve chosen to allocate your time focussing on peripheral issues, then you will have to live with the consequences of not having addressed the core question which we need to deal with. Now, I don’t know if I could be any clearer than that, but do you have any questions about what I just said? Do you understand what I’m telling you?
MR. ROGERSON: I do. My understanding, probably erroneous, was that the only witness to be called was this one.
THE CHAIR: Yes.
MR. ROGERSON: That’s my understanding, for me to examine. And at the end of the Law Society’s case, then by some stage on Monday, I am to provide written submissions by a certain time. Is –
THE CHAIR: Correct.
MR. ROGERSON: – that a correct understanding –
THE CHAIR: Correct. We will – yeah.
MS. MCDUNNOUGH: Well, I think, you know, the Law Society will wish to cross-examine Mr. Rogerson.
MR. MERCER: And the Law Society may wish to make submissions as well. We don’t have all day for just this cross-examination.
MR. ROGERSON: Well, I’m grateful for that, but the problem is I wasn’t aware of that. My understanding was this was the only witness. And I was going to be – I’ve had – well, we have a problem then. It certainly wasn’t my understanding from what had fallen previously.
MR. MERCER: Mr. Rogerson, you filed your stuff at 2 o'clock in the morning. When did you expect to be told that you were going to be cross-examined on it?
MR. ROGERSON: Well, this morning, my understanding was that the Law Society objected to it. We were looking at an adjournment. I was not told – and I accept it was only provided at 2:00 in the morning, but certainly, this morning there's been – anyway, be that as it may, I understand now from what you’ve said, Mr. Mercer, is that between now and 4 o’clock, or whatever time, we only have time for me to cross-examine this gentleman, for Ms. McDunnough to cross-examine me, for her submissions and then over the weekend, I do my writing. Is that –
THE CHAIR: Yes.
MR. ROGERSON: – my understanding is correct?
THE CHAIR: Yes.
MR. ROGERSON: Well, would you indicate please since now I think I understand, how long do I have, and how long does Ms. McDunnough have? Because my understanding based on this morning is that my case completely was to come in a written form, completely, on Monday. So, could you perhaps give an indication as to how you see the allocation of time this afternoon. Then, I’ll definitely try to make sure I fit within it.
64The panel chair made two more very brief interjections about relevance toward the end of the cross-examination. Both were resolved in the Lawyer’s favour after hearing from Law Society counsel.
Conclusion
65We are satisfied that a reasonable person informed of all the circumstances, including the need to focus only on what is relevant and material and to carefully manage scarce hearing time and resources, would view the panel’s questions and interventions as both necessary and entirely reasonable.
66We found no evidence of bias. The panel’s interjections were entirely appropriate exercises of hearing management intended to assist the Lawyer by redirecting him to relevant issues so that he might avoid squandering his opportunity to question the witness. The panel listened to and engaged with the Lawyer thoughtfully and respectfully.
67It is fair to say that the panel member displayed some frustration with the Lawyer in his remark about delivery of his materials at 2:00 AM the morning of the hearing. However, as Justice Doherty commented in Kelly v Palazzo, 2008 ONCA 82 at para 21, “(I)t takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality.”
68Nor do we agree the panel chair’s posing questions to the witness caused any unfairness. The questions did not raise new issues or issues the Lawyer was not attempting to pursue. Both were asked to assist the Lawyer to move forward with his cross-examination. The Lawyer did not object and was not prevented from asking follow-up questions.
69We do not give effect to these grounds of appeal.
Reversal of Onus (Ground 9)
70The Lawyer claimed that the panel chair told him during the hearing, “look, you’ve got to persuade us not to suspend you.” He argued that this statement implicitly confirmed the panel chair did not appreciate that the Law Society bore the onus and “did not know what he was doing.” The Lawyer was unable to identify anything in the hearing panel’s reasons for decision which supported this allegation.
71The Lawyer’s argument contains two factual errors. First, the impugned statement was not made by the panel chair. The panel member, Mr. Mercer, said this. Second, it misquotes what was said.
MR. MERCER: Mr. Rogerson, we’re now an hour and a quarter into your cross-examination. If we continue at this pace, I don’t think you'll have addressed much that’s of importance. And I am very concerned about you focussing what you need to persuade us. There is limited time, and you’ll run out of time, and it’s not being used to effect currently as I perceive it.
MR. ROGERSON: I accept that now you’ve expressed it so well.
72The panel member’s comments must be understood in context. He was attempting to signal to the Lawyer that his questions were not helpful to the panel and to warn him that he was at risk of running out of time. His interjection came only after the panel chair’s earlier attempts to direct the Lawyer to focus his questions on matters relevant to the issues in dispute. The statement was intended to focus the Lawyer on the relevant questions; it was not a statement about the Lawyer bearing the onus.
73Further, as the reasons for decision make abundantly clear, the panel clearly understood the Law Society bore the onus. The Lawyer offered nothing to link the panel member’s interjection to his claim that the panel misunderstood or misapplied the burden of proof when reaching its decision.
74We do not give effect to this ground of appeal.
Bringing administration of justice into disrepute (Ground 12)
75Ground:
- Tribunal failing to read or act upon appellant’s detailed submissions. Three weeks between receiving submissions and the panel issuing its order and reasons.
76The Lawyer has not provided any compelling explanation or authority for the proposition that the panel’s refusal to consider additional written submissions filed after the July 7 deadline brought the administration of justice into disrepute. He did not seek permission to make these further submissions nor did the panel request them. Moreover, his July 7 written submissions explicitly confirm the Lawyer’s understanding that they would “complete the hearing” subject to any permissible reply from the Law Society.
77The Lawyer also takes issue with the short delay in issuing the Tribunal’s order. The Tribunal explained that this was an administrative error. The Lawyer speculates that something else might have occurred in the intervening period. He offers no basis for these speculations.
78We do not give effect to this ground of appeal.
Marlowe not misquoted
79This allegation was not included as a ground in the original notice of appeal filed September 2, 2025 or with the amendment filed sometime later. The Law Society did not object to our considering it.
80The Lawyer was unable to find the purported misquote in the Suspension Decision but we understand his argument to be that the panel incorrectly concluded the court had found there was no variation of the Mareva order which entitled him to expend the restrained funds. This led the hearing panel to make a damaging credibility finding.
81At para 33 of the Suspension Decision the hearing panel states:
The judge also concluded that Barlas had not authorized any work or received any invoices. The judge further concluded that the only work that the respondent did was to:
Use $10,000 of the retainer to facilitate the move of over $1 million in gold and silver from Barlas’s office in the Northwest Territories to Ontario. The gold and silver were later returned to the Northwest Territories. Still, its initial movement was done in knowing breach of the injunction.
Challenge the fees of the law firm that handled the Mareva application. The judge found that the respondent’s claim that there was a variation of the injunction order that allowed him to expend restrained funds was “beyond credulity.” (emphasis ours)
82Paragraph 28 of Marlowe reads:
Moreover, it would be bizarre to think that counsel for Barlas on the Mareva – all of whom were from major firms in Alberta – would seek to have funds released to Rogerson to tax a bill in that province. The further idea that they did so without asking Rogerson how much it would cost, or advising him of their success in securing those funds, is beyond credulity. (emphasis ours)
83The hearing panel made no error. Marlowe is quoted correctly. We do not give effect to this ground of appeal.
CONDUCT OF LAW SOCIETY COUNSEL (GROUNDS 7, 8 AND 10)
Counsel as prosecutor (Ground 7)
84In support of his July 4 adjournment request the Lawyer advised the hearing panel that he had transferred his trust accounts to another law firm. In her closing submissions, Law Society counsel advised the panel that she checked this claim at the break and it appeared that the Lawyer still had trust accounts in his name.
85The Lawyer claims this shows that Law Society counsel wished to “procure a conviction at all costs.” He argued this was unfair and inconsistent with her prosecutorial function: Boucher v The Queen, 1954 CanLII 3 (SCC).
86The Disqualification Decision also considered whether Law Society discipline counsel performs a function akin to that of a criminal public prosecutor/Minister of Justice. The member concluded at paras 20-21:
There is no statutory provision that creates the role of “prosecutor” or that vests any prosecutorial powers in the lawyer acting for the LSO as discipline counsel. The LSO’s lawyer is nothing more than its counsel.…
It is plain from the language of s 34 of the Act and Rules 7.8.2-2 and 7.8.2-3 that the LSO is a party to the conduct hearing. The LSO is seeking a ruling from the Hearing Division as to whether a licensee has engaged in misconduct or conduct unbecoming, or, in this case, whether an interlocutory suspension is warranted. The lawyers representing the LSO, be they called discipline counsel or prosecutor, are fulfilling their role as the advocates for the LSO at the conduct hearing. The role of discipline counsel is not that of a “Minister of Justice” or Crown counsel or similar.
87This issue also arose in Law Society of Ontario v Watson, 2025 ONLSTH 60. In that decision the member considered Rule 5.1-3 of the Rules of Professional Conduct, which describes the responsibilities of a prosecutor. She concluded that the commentary to that Rule makes clear that it addresses the role of a public prosecutor in a criminal or quasi-criminal context, which is “not the role of discipline counsel.”
Insofar as Rule 5.1‑3 applies by analogy, this is limited to the duty of discipline counsel to exercise their discretion reasonably and for proper purposes, and to act with fairness towards the licensee who is subject to the conduct application, guided as appropriate by policy, direction and instructions from the LSO: Law Society of Upper Canada v DeMerchant, 2017 ONLSTA 5, paras 17 and 21. Watson, para 29.
88We note, however, that DeMerchant goes on to say, at para 36:
The Law Society is not a private litigant before the Tribunal. Counsel acting as prosecutors “… act for the public and the administration of justice” and have “… much discretion and power and must act fairly and dispassionately”: Rules of Professional Conduct, Rule 5.1-3 and Commentary 1. Determining what is reasonable involves considering this context, including both the duty to focus on the public interest and acting in a manner that promotes the smooth administration of justice.
89In the end it is not necessary for us to decide whether Law Society counsel acts as private counsel or a public prosecutor. On the facts before us, Law Society counsel’s report concerning the Lawyer’s claim to have closed his trust accounts was not material to the decision reached by the hearing panel. That is because the Lawyer had not made it a point of evidence which the hearing panel could consider.
90We do not give effect to this ground of appeal.
Counsel misled the panel (Ground 8)
91The Lawyer argued that Law Society’s counsel’s “pronouncements” concerning the impact of his alleged misconduct on the First Nation which was the applicant in Marlowe and her discussion of Tribunal’s decision in Bogue during closing argument misled the hearing panel.
92He claimed there were many other examples of her misleading submissions but he was unable to locate them in the transcript despite being required by Rule 19.2(1) to have done so in his factum. To assist the Lawyer to make best use of his time for argument, we permitted him to provide us with a list of references after the break. Rather than doing as requested, the Lawyer emailed excerpts from unidentified documents. This appeared to be an attempt to submit, through the backdoor, portions of the materials we refused to receive at the outset of the hearing. We did not accept the excerpts.
93While it is evident the Lawyer disagrees with counsel’s submissions on Bogue, he was unable to explain how they could be construed as misleading. Nor has he explained how he believes they misled the panel in its interpretation of that decision. We arrive at the same conclusion about this allegation as reached in the Disqualification Decision at para 25:
Mr. Rogerson’s arguments are much akin to those raised by the licensee in Fuhgeh v Law Society of Ontario, 2022 ONLSTA 18, affirming 2021 ONLSTA 24 at paras 57-62. There, as here, the real objections that Mr. Rogerson raises are that he disagrees with how the case was presented to the hearing panel by Ms. McDunnough. Disagreement with the characterization of evidence, or what parts of particular case law are emphasized, does not amount to misconduct. That is advocacy. Mr. Rogerson was given full opportunity to present his own evidence and to make arguments to counter the arguments made by the LSO’s counsel.
94There is nothing to support the Lawyer’s claim that counsel’s submissions concerning the Bogue decision affected the fairness of the hearing panel’s decision-making.
95We agree there are numerous points in the transcript where counsel refers to harm experienced by the First Nation and attributes that to the Lawyer’s refusal to comply with the terms of the Mareva order and the direction in Marlowe requiring him to return the restrained funds. The hearing panel concluded there were reasonable grounds to believe the Lawyer’s “apparent defiance of the Mareva injunction has the potential to also victimize the Łutsel K'e Dene First Nation, a First Nation facing significant economic challenges.”: Suspension Decision at para 47.
96The hearing panel explicitly relied on the census data included in the Law Society’s authorities to make that finding. This was objective evidence. Law Society counsel’s submissions were not a factor in this finding. Reliance on this evidence was not unfair to the Lawyer.
97We do not give effect to this ground of appeal.
Counsel refused to “address” alternative and lesser disposition (Ground 10)
98We struggled to understand the precise nature of the Lawyer’s concerns and how they amounted to a proper ground of appeal. There appeared to be two issues. First, the Lawyer claimed that Law Society counsel failed to respond to his offer to transfer control of his trust accounts to another law firm and to provide the Law Society with regular health information. She had also failed to advise the hearing panel about these offers. Second, the Lawyer argued that counsel failed to make any submissions about ordering restrictions on his licence. Neither assertion is borne out on the record.
99The Lawyer went on at considerable length about the purported offers and his communications with counsel during his submissions seeking the adjournment from the hearing panel. As noted in the reasons, he did not produce documents to support this position. Law Society counsel disagreed that meaningful offers had been made and that the trust account transfers had occurred.
100We fail to see how Law Society counsel’s failure to respond to offers would be more than marginally relevant to the hearing panel’s determination. If the Lawyer genuinely wished to pursue this issue in support of his argument for restrictions rather than a suspension, he ought to have produced evidence to support it. He did not do so.
101On the second point, the transcript confirms that counsel did address restrictions but argued that they were not appropriate in the circumstances. It was entirely open to the Lawyer to argue against a suspension and to produce evidence he had taken proactive steps to reduce or contain the risk of harm to the public. That he chose not to do so does not affect the fairness of the hearing or the hearing panel’s decision.
102We do not give effect to this ground of appeal.
LSO’s investigation was “corrupted” (Ground 11)
103The Lawyer’s revised factum fails to coherently articulate this ground of appeal. It is a jumble of catchphrases followed by citations and quotations strung together in a stream of consciousness style. There is reference to “rubber stamping of the request to investigate/prosecute,” “investigation bias,” and complaints that the investigator failed to return his email messages or acknowledge his difficulties with accessing LSO Connects. Groia v Law Society of Upper Canada, 2018 SCC 27, is cited in support of the proposition that the Law Society must be careful not to place too much weight on a judge’s criticism of defence behaviour and that a judge’s reaction is not conclusive of the propriety of a lawyer’s conduct.
104The Lawyer’s oral argument was only marginally more coherent. He argued that the Law Society’s investigation was unfair and abusive because the investigator and the Law Society failed to exercise their own judgement about the Marlowe decision. In his view, the investigation was simply a “rubber stamp” of a decision he considers wrong in law and which he is appealing. We note in this connection that a motion to strike the Lawyer’s appeal of Marlowe is pending
105However, unless the Lawyer succeeds on an appeal, we do not accept that the Law Society made any error in concluding that the Marlowe findings were a credible and compelling foundation for allegations of professional misconduct and conduct unbecoming.
106The Lawyer also complained that the investigator failed to return his messages. The Lawyer did not show how the hearing panel erred in refusing to accept this as evidence of investigative unfairness.
107We do not give effect to this ground of appeal.
CONCLUSION
108For the reasons provided above the appeal is dismissed.
109If the Law Society seeks its costs of the appeal, it may provide written submissions of no more than three double-spaced pages together with its bill of costs and any authorities no later than June 26, 2026.
110Mr. Rogerson may provide responding submissions no later than July 10, 2026. Mr. Rogerson’s submissions shall also not exceed three double-spaced pages and may include a brief of authorities.