Law Society of Ontario v. Granville Nolley Cadogan, 2026 ONLSTH 20

LAW SOCIETY TRIBUNAL

HEARING DIVISION

Date: January 30, 2026 Tribunal File No.: 24H-044

BETWEEN:

Law Society of Ontario Applicant

• and -

Granville Nolley Cadogan Respondent

Before: Malcolm M. Mercer (Chair)

Heard: In writing

Appearances: Daniel Iny and Melanie Anderson, for the applicant Respondent, self-represented

Summary: CADOGAN – Disclosure – In the context of a proceeding involving mortgage fraud, the Lawyer brought a motion seeking disclosure of privileged information obtained by the Law Society in the course of investigations of other lawyers who acted for other parties in the same transactions ‒ The panel deferred making a final decision ‒ It ordered that the Law Society review materials to determine if documents are not privileged or possibly privileged ‒ Not privileged documents are to be disclosed ‒ Further review of possibly privileged documents by the Chair will determine if they are privileged, whether disclosure is absolutely necessary, if further redactions are required and whether further disclosure orders are appropriate.

REASONS FOR DECISION RE MOTIONS

1Malcolm M. Mercer (for the panel):– These reasons address a rare but important question about the interplay between the Law Society’s duty of disclosure and solicitor-client privilege.

2Granville Cadogan is alleged to have knowingly or negligently facilitated mortgage fraud. He seeks disclosure of privileged information obtained by the Law Society in the course of investigations of other lawyers who acted for other parties in the same transactions.

3This motion raises the question of whether a licensee can obtain disclosure of privileged information from the Law Society where the privilege is that of a third party, not information from a matter in which the licensee acted for a client.

4The Supreme Court of Canada has held that information protected by solicitor-client privilege may be accessed where authorized by legislation but only if the legislation clearly and unambiguously does so. The Supreme Court has also held that solicitor-client privilege should not be breached unless “absolutely necessary”. These are strict legal tests.

5For the following reasons, I am not satisfied that Mr. Cadogan is entitled to disclosure of third-party privileged information in the possession of the Law Society. However, I defer making a final decision and adopt a practical procedure proposed by the Law Society which may avoid having to reach a final conclusion and which, in any event, should only result if disclosure if necessary.

6These reasons start with an analysis of the Law Society Act, RSO 1990, c L.8 (the Act), and the provisions which address privileged and confidential information. This review provides context and assists in the ultimate question of statutory interpretation.

ACCESS TO AND USE OF PRIVILEGED AND CONFIDENTIAL MATERIAL

7Effective regulation of lawyers and paralegals requires that the Law Society be able to access and use privileged and confidential information and documents.

8If client consent were required for the Law Society to access privileged and confidential information, clients would have control over Law Society scrutiny of professional conduct. Commonly, clients want regulatory scrutiny, but this is not always the case. Cases of knowing assistance in fraud, money laundering, and misconduct in the administration of justice provide some examples of situations where clients may wish to avoid regulatory scrutiny of their legal representatives.

9It would be inappropriate for clients to be required to waive privilege in order for their lawyers and paralegals to be held accountable for their professional conduct. While disclosure by a client, or client consent to disclosure by the licensee, of privileged information to the Law Society might be treated by common law as being only a limited waiver of privilege, clients might well be concerned about the risk of loss of privilege and be chilled in making complaints.¹

10These difficulties are avoided in Ontario by legislation.

11Section 49.8(1) of the Act provides that persons required to provide information or to produce documents in Law Society in conduct investigations:²

shall comply with the requirement even if the information or documents are privileged or confidential.

12As a result, licensees³ who are the subject of investigations under s 49.3(2) of the Act must provide required information and documents whether or not privilege or confidentiality applies. This means that responding to investigative requests for privileged information and documents does not depend on client consent.

13In an investigation, the Law Society may also receive information and documents from persons who are not required to do so. Section 49.8(1.1) of the Act provides that the Law Society may receive “from any person or body” information or documents in relation to an investigation under s 49.3 “even if the information or documents are privileged or confidential.”⁴

14Significantly, s 49.8(3) provides that information and documents that must be provided in accordance with s 49.8(1) and which may be received in accordance with s 49.8(1.1) “remain privileged for all other purposes”.

15Section 49.8(3) further provides that ss 49.8(1) and (1.1) “do not negate or constitute a waiver of any privilege”.

16As a result of these provisions of the Act, potentially difficult common law privilege questions are avoided. Conduct investigations do not compromise privilege or confidentiality for other purposes. Privilege and confidential information and documents are available to the Law Society in an investigation.

17The Act addresses privileged and confidential information in applications as well as investigations. Section 49.8(2) provides that information and documents described above “are admissible in a proceeding under this Act even if the information or documents are privileged or confidential.” Section 49.8(3) maintains privilege and confidentiality despite admissibility under s 49.8(2).

18As a result, privileged and confidential information and documents are routinely in evidence in Tribunal proceedings, yet privilege and confidentiality are not lost as a result. This is one of the reasons that there are often public and not-public versions of documents in Tribunal proceedings and that Tribunal proceedings sometimes take place, in whole or in part, in the absence of the public.

Protection of information

19While providing that the Law Society can access privileged and confidential materials, the Act unsurprisingly puts limits on what the Law Society may do with these materials. Subject to express exceptions, s 49.12(1) of the Act very generally provides that:

A bencher, officer, employee, agent or representative of the Society shall not disclose any information that comes to his or her knowledge in relation to an audit, investigation, review, search, seizure or proceeding, or potential audit, investigation, review or proceeding, under this Part.

20This is an important constraint in respect of information obtained by the Law Society in its investigations and other contexts. However, s 49.12(2) of the Act provides a number of exceptions, two of which are particularly relevant here:

• disclosure required in connection with the administration of this Act, the regulations, the by-laws or the rules of practice and procedure; and
• disclosure required in connection with a proceeding under this Act.

Required Disclosure

21Applications by the Law Society before the Tribunal have long been subject to Stinchcombe-like⁵ disclosure obligations. Tribunal Rule 10.1 provides that:

The Law Society must disclose to the licensee or licence applicant, within a reasonable period of time following the filing of the application, all potentially relevant documents in its possession, except for those it is not disclosing due to privilege. Privileged documents must be identified to the other party.

22Tribunal Rule 10.7 provides that “Evidence not disclosed or produced as required by this rule may not be relied upon without leave of the Tribunal.”

23There have been a number of cases before the Tribunal which address this disclosure obligation. One of the leading cases is Law Society of Upper Canada v James, 2017 ONLSTA 16. To summarize, the Law Society must disclose arguably relevant information⁶ gathered during an investigation but not the analysis, comments, and opinions of investigators or counsel.

24In the usual case, much of the information gathered in a Law Society investigation comes from the licensee under investigation. But information can be gathered from other sources and is subject to disclosure obligations as well.

SAVONE

25In a small number of cases, the Law Society has arguably relevant information as a result of an investigation of another licensee or for some reason other than the investigation of the respondent. The question has arisen whether the Law Society’s disclosure obligation is only in respect of information obtained in the course of the specific investigation of the licensee’s conduct or whether the source of the information matters.

26In most cases, the only relevant privilege or confidentiality in respect of information known to the Law Society is that of the licensee’s client. The licensee is ordinarily fully aware of this information. Indeed, the licensee commonly provides much, if not all, of the privileged and confidential information to the Law Society during the investigation.

27In a small number of cases, the Law Society has arguably relevant information that comes from another licensee’s file for a different client. The respondent licensee would ordinarily not be aware of this information.

28This issue came to a head in Savone. The Law Society brought a conduct application against Mr. Savone alleging participation in mortgage fraud. The Law Society had also investigated the conduct of other lawyers who had acted on some of the same transactions. These were lawyers on the other side of the same transactions in respect of which Mr. Savone was alleged to have engaged in professional misconduct.

29In Law Society of Upper Canada v Savone, 2016 ONSC 3378, the Divisional Court concluded that the Law Society’s disclosure obligation is not limited to information obtained in the investigation of the respondent. While the phrase “the fruits of the investigation” is often used in the discussion of disclosure obligation, disclosure is not limited to information learned in the specific investigation that led to the conduct application.

30Notably, the Divisional Court in Savone stated at paras 42-43:

In the face of these clear provisions of the Act, the interpretation placed on s. 49.12 by the Hearing Panel cannot be sustained. Section 49.12 does not preclude documents obtained from one lawyer’s file pursuant to an investigative request from being disclosed or used in another lawyer’s conduct proceeding, even if the investigation of the other lawyer is in relation to an entirely separate matter.

This does not mean that s. 49.12 defeats claims of solicitor-client privilege. Where some or all of the documents in another lawyer’s file are potentially privileged, a hearing panel will be obliged to ensure that any claim of privilege is determined before such documents are disclosed or used in a proceeding against a different lawyer. The Appeal Panel was alive to this concern, and outlined a suggested procedure for resolving privilege issues. However in the end, they left it to the panel hearing any motion for disclosure to determine the appropriate process, and to decide any claims of privilege.

PRIVILEGE AND DISCLOSURE FROM INVESTIGATION OF ANOTHER LICENSEE

31To repeat, disclosure of privileged information in most cases means disclosure of information that the licensee already knows; i.e. information that is in respect of the work done by the licensee for their client.

32The Savone context was very different than most cases. This case is like Savone.

33Mr. Cadogan is alleged to have engaged in professional misconduct in respect of certain real estate transactions. The Law Society has brought a conduct application against another lawyer, Anthony Maniaci, who acted for another client in one or more of the same (or perhaps related) transactions.

34Mr. Maniaci has sought and obtained a disclosure order in respect of information from the investigation of the conduct of other lawyers, including Mr. Cadogan: Law Society of Ontario v Maniaci, 2025 ONLSTH 76.

35Mr. Cadogan has sought a disclosure order in respect of information from the investigation into the conduct of other lawyers, including Mr. Maniaci. Other than with respect to solicitor-client privilege, there is no remaining issue to be resolved with respect to disclosure of non-privileged information.

36The position of the Law Society and of Mr. Cadogan is that privilege is not a bar to disclosure of information from the other investigations. On this motion, Mr. Maniaci has not taken a position but he expressly “does not condone a breach of solicitor-client privilege”. The clients whose privilege is in issue have been given notice but have not appeared. Some have said that they do not object. No client has consented to disclosure of privileged information.

37In Law Society of Upper Canada v Savone, 2017 ONLSTH 100, the hearing panel concluded that Mr. Savone was entitled to disclosure of privileged information from the files of other lawyers who had acted for other clients. The Law Society and Mr. Cadogan rely on this decision which they say applies here.

38At paras 87-88 of its reasons, the Savone panel wrote:

As of the time of the hearing before us, the Society, having notified Mr. Sutherland and Mr. Lafrange’s lender clients that this motion was pending, supported the Licensee on this motion. That is, it agreed that a reasonable interpretation of s. 49.8(2) of the Act permits us to order the disclosure of the otherwise privileged documents. Section 49.8 provides:

(2) Despite clause 15.2(a) and section 32 of the Statutory Powers Procedures Act, information provided and documents produced under sections 42, 49.2, 49.3 or 49.15 and information or documents described in subsection (1.1) are admissible in a proceeding under this Act even if the information or documents are privileged or confidential.

We agree with the submissions of both parties that it is reasonable to interpret the words “admissible in a proceeding under this Act” as applying to documents in the files of lawyers who are not themselves the subject of the proceeding. Having said that, because of the fundamental importance of solicitor-client privilege, our ruling to this effect should not be misconstrued as applying to all conduct proceedings in which this issue arises. In our view, such an order should only be made, as it was in this case, after the clients, who hold the privilege, have been advised of the motion under s. 49.2 and provided with an opportunity to object to the waiver of the privilege.

39If the reasons of the hearing panel are accepted then it follows that I should order disclosure. However, there is authority not considered in those reasons that raises concern.

40Specifically, I requested submissions with respect to the applicability of Pritchard v Ontario (Human Rights Commission), 2004 SCC 31, and Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44.

41These Supreme Court of Canada cases establish that clear and unambiguous statutory language is required to overcome solicitor-client privilege and that solicitor-client privilege must be as close to absolute as possible.

42In this respect, it is notable that the hearing panel in Savone did not apply a “clear and unambiguous” standard. That panel held that “it is reasonable to interpret the words” of the statute as authorizing disclosure. The Savone hearing panel did not consider Prichard or Blood Tribe.

IS THE CLEAR AND UNAMBIGUOUS STANDARD MET?

43As the Law Society submits, Pritchard and Blood Tribe affirmed the importance of preserving solicitor-client privilege and set out the following principles in interpreting any legislation which purports to limit or deny solicitor-client privilege:

• Such legislation “will be interpreted restrictively” (Pritchard at para 33).
• “Solicitor-client privilege cannot be abrogated by inference” (Pritchard at para 33).
• “Open-textured language governing production of documents will be read not to include solicitor-client documents” (Blood Tribe at para 11).

On this basis, courts have refused to order disclosure of documents and information subject to solicitor-client privilege absent express statutory language authorizing such disclosure.

44As discussed above, the Act clearly and unambiguously requires production of privileged information and documents by a licensee who is the subject of an instructed investigation. The Act further permits receipt of privileged information from others who are not required to make production.

45The Act expressly permits the use of such privileged information as evidence in conduct applications.

46The Act maintains privilege in respect of information received in an investigation and used in a conduct application.

47As found by the Savone hearing panel, a reasonable interpretation of this legislative structure is that it simply does not matter from who privileged information was obtained. Use of such privileged information is expressly permitted irrespective of its source. Privilege is fully protected despite such use.

48However, the Act does not expressly address whether this regime applies both to the usual case (where privilege applies to the matter in which the licensee is retained) and the unusual case (where the licensee is a stranger to the matter to which privilege attaches).

49The starting point for statutory interpretation has long been Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), which articulated the modern approach to statutory interpretation as follows:

the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [at para 21].

50More recently, the majority of the Supreme Court of Canada affirmed in Lundin Mining Corp. v Markowich, 2025 SCC 39 at para 46, that “A statutory provision is interpreted based on its text, context, and purpose to find a meaning that is harmonious with the legislation as a whole”. Also, Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 at para 87.

51If the required inquiry ended with the text of the Act, I would accept that the Act clearly and unambiguously requires disclosure of privileged information and documents where the subject licensee did not act on the matter in which privilege arises.

52However, it seems to me that the context and purpose of these legislative provisions is to enable effective professional accountability where the relevant relationship is commonly protected by privilege. Access to privileged information from the licensee’s client is essential to professional regulation. But for the legislative provisions that overcome this privilege, lawyers and paralegals could not be effectively regulated.

53But access to privileged information more generally is another thing. It is far from clear that the scheme of the Act, the object of the Act, and the intent of the legislature justify or assume access to privilege to which the respondent licensee is a stranger.

54While clients are required to accept that their privilege will yield to hold their lawyers and paralegals accountable, the same does not follow for other clients in order to hold lawyers and paralegals accountable who they did not retain.

55As matters currently stand, I am not satisfied that the Act clearly and unambiguously authorizes disclosure to Mr. Cadogan of privileged information in respect of matters for which he was not retained.

56That said, I have not had the benefit of oral or contested submissions and I am hesitant to come to a final conclusion at this stage of the proceeding.

57The Law Society has suggested a practical approach that may avoid having to unnecessarily decide this question. The Law Society’s position is that, even assuming a clear and unambiguous entitlement, privilege should not be breached unless “absolutely necessary”. The practical approach suggested by the Law Society would permit review of documents to make determination of what is privileged and what is not, which is a useful exercise. The approach suggested would distinguish between documents, the disclosure of which may be necessary, and other documents, where disclosure is not necessary for Mr. Cadogan to fully respond to the allegations against him.

58The suggested approach mirrors an approach noted by the Divisional Court in Savone, above at paras 45-46:

A panel establishing the procedure for the adjudication of a third party solicitor-client privilege claim should be alive to the decision of the Supreme Court of Canada in R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185. In that case, the Court emphasized that solicitor-client privilege is fundamental to Canada's justice system and will yield only in rare circumstances, and that the ability to infringe a third party’s solicitor-client privilege must be limited to cases where the accused's innocence is at stake, and where there is no other way to raise a reasonable doubt. As a result, in the usual case, it would be preferable to delay an application to disclose privileged information until the end of the prosecution’s case. This will better permit the trial judge to assess the strength of the Crown's case against the accused, and to determine whether the accused's innocence is, in fact, at stake. If the Crown has failed to prove its case beyond a reasonable doubt, then there will be no need to allow the application and invade a third party’s solicitor-client privilege. This process will prevent privilege from being unnecessarily violated.

I appreciate that s. 49.8(2) of the Act makes privileged information and documents produced to the Law Society in the course of a review of a lawyer’s competence or conduct admissible in a proceeding under the Act, while s. 49.8(3) leaves the privilege intact for other purposes. While it is arguable that s. 49.8(2) broadens the circumstances in which documents protected by solicitor-client privilege are admissible in discipline proceedings against a lawyer who is not the owner of the files under consideration, the comments in Brown about timing may still have application.

59Without intending to accept that the “innocence at stake” exception to solicitor-client privilege applies where professional licensing (rather than penal consequences) is at stake, there is obvious merit to a process that avoids unnecessary invasion of third-party privilege.

60In addition to prospect of further useful submissions on a difficult legal issue, it would also be useful to avoid having to decide an important issue before it is necessary to do so. The Savone case further provides a cautionary tale of the possibility of multiple hearings and appeals in the event of unnecessary error.

61For these reasons and taking into account the Law Society’s submissions and directions previously made, I now order as follows:

1. The following defined terms are used in this order: a. “Listed Documents” means a list of documents which the Law Society has identified as being fruits of other investigations and arguably relevant to this application. b. “Possibly Privileged Documents” means: i. the Listed Documents that are said by the Law Society to contain reference to material or communications that may be subject to solicitor-client privilege; and ii. any further documents identified by the Law Society documents as being arguably relevant and to which solicitor-client privilege may apply. c. “Non-Privileged Documents” means the Listed Documents that the Law Society has determined do not contain information that may be subject to solicitor-client privilege.
2. The Law Society shall disclose the Non-Privileged Documents to Mr. Cadogan, subject to redaction of information that is irrelevant to this proceeding. The Law Society shall provide sufficient information as to the basis for redactions that Mr. Cadogan can reasonably assess whether what is redacted may be relevant.
3. The Law Society shall identify any further documents in its possession that are arguably relevant to which solicitor-client privilege may apply. In this order, any such documents will be treated as being Possibly Privileged Documents.
4. The Law Society shall disclose the portions of the Possibly Privileged Documents to Mr. Cadogan, if any, that are not subject to solicitor-client privilege, subject to redaction of information that is irrelevant to this proceeding. The Law Society shall provide sufficient information as to the basis for redactions that Mr. Cadogan can reasonably assess whether what is redacted is arguably relevant.
5. The Law Society shall provide copies of the Possibly Privileged Documents to the Chair and shall identify to the Chair which portions of the unredacted documents are potentially subject to the privilege, as necessary. The provided copies will be not-public.
6. For each document, the Chair will determine: a. whether the document (or portions thereof) is subject to solicitor-client privilege; b. if privileged, (i) whether it appears that disclosure is “absolutely necessary” for Mr. Cadogan’s defence in this proceeding and (ii) if so, how to proceed; c. whether any further redactions should be applied to properly protect solicitor-client privilege while enabling Mr. Cadogan’s review of the document; and d. whether an order for disclosure to Mr. Cadogan is appropriate.
7. Mr. Cadogan is not permitted to use any disclosure from this proceeding in civil or other proceedings, absent an order from this Tribunal. Mr. Cadogan may share the disclosure with counsel representing him in any civil actions on a confidential basis.
8. This order replaces and consolidates directions previously given in this regard.

Footnotes

1. 1Sections 7.89 to 7.104 of Dodek, Solicitor-Client Privilege (Toronto: LexisNexis Canada, 2014) provide a useful discussion of limited waiver and the question of whether voluntary disclosure to a regulator results in waiver of privilege or not at common law.
2. 2Section 49.8(1) applies in other contexts as well.
3. 3As well as persons who work, or worked, with them.
4. 4This section also applies in other contexts as well.
5. 5R. v Stinchcombe, 1991 CanLII 45 (SCC)
6. 6In the balance of these reasons, I will simply refer to information rather than information and documents.