LAW SOCIETY TRIBUNAL
HEARING DIVISION
Date: January 30, 2026 Tribunal File No.: 25H-166
BETWEEN:
Law Society of Ontario Applicant
- and -
Robert William Hugh Kivlichan Respondent
Before: Malcolm M. Mercer (Chair), Murray Klippenstein, François Turpin Heard: December 17, 2025, by videoconference
Appearances: Joshua Elcombe, for the applicant Respondent, self-represented
Summary: KIVLICHAN – Interlocutory Suspension – The Lawyer has experienced difficulties with substance abuse and mental health – While some steps have been taken, there was not sufficient evidence to persuade the panel that there is no risk to the public or the public interest in the administration of justice if he continues to practise – The risk of relevant harm is not sufficiently mitigated by restrictions on practice – The Lawyer’s licence was suspended on an interlocutory basis.
REASONS FOR DECISION ON A MOTION FOR INTERLOCUTORY SUSPENSION OR RESTRICTIONS
1Malcolm M. Mercer (for the panel):– The Law Society seeks an interlocutory suspension of Robert William Hugh Kivlichan’s licence to practise law.
2Mr. Kivlichan does not accept that any interlocutory order is required. However, his principal position is that interlocutory restrictions on his licence would be sufficient.
3Section 49.27 of the Law Society Act, RSO 1990, c L.8 (the Act), provides that an interlocutory suspension or restrictions cannot be ordered unless there are reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice, if the order is not made.
THE POSITIONS OF THE PARTIES
4The Law Society’s position is that there is sufficient evidence of misconduct, particularly involving dishonesty, to establish reasonable grounds for believing that there is significant risk of relevant harm.
5Mr. Kivlichan acknowledges some, but not all, of the alleged past misconduct. His position is that (i) any past misconduct was the result of mental illness including substance abuse disorder and that (ii) the risk of recurrence is sufficiently mitigated by his improved health, current treatment/management and, if required, proposed restrictions.
6In response, the Law Society’s position is that Mr. Kivlichan has not established that his mental health provides an excuse or sufficient explanation for his conduct and, in any event, that Mr. Kivlichan has not established that risk arising from his mental health has been sufficiently mitigated. The Law Society’s position is that Mr. Kivlichan simply cannot be trusted and cannot be permitted to serve clients and the administration of justice.
Overview
7Mr. Kivlichan has had mental health and substance abuse problems which have adversely affected his clients.
8These reasons explain why we are satisfied that there are reasonable grounds to believe that Mr. Kivlichan’s health and substance abuse problems continue to give rise to significant risk of future harm to clients and the public interest in the administration of justice and why we conclude that he can not be relied on to be candid with the Law Society about his health and his practice.
9These reasons also address other issues raised involving Mr. Kivlichan’s clients which go beyond ordinary failures to serve clients. There are issues which appear to raise questions as to Mr. Kivlichan’s honourability and integrity. These issues include improperly taking client money from trust, making deals with clients to withdraw complaints, threatening clients and others, and creating false invoices. Whether the result of compromised judgment because of illness or otherwise, we conclude that these matters also provide reasonable grounds to believe that there is significant risk of future harm to clients and the public interest in the administration of justice.
10These reasons further address Mr. Kivlichan’s dealings with the Law Society’s investigation including attempting to hide information from the Law Society’s investigator and to mislead. We conclude that this too provides reasonable grounds to believe that there is significant risk of relevant future harm.
11We first address the evidence regarding Mr. Kivlichan’s health and the dealings between Mr. Kivlichan and the Law Society in that regard.
12With the benefit of the evidence regarding health matters, we will then turn to the evidence of alleged misconduct.
13After that, we will review the events leading up to this motion. We will then review the relevant law and then apply it to the facts.
14We ultimately conclude that we have the authority to order an interlocutory suspension, that interlocutory restrictions are not appropriate and that an interlocutory suspension is appropriate.
MENTAL HEALTH
15In late 2023, Mr. Kivlichan represented in response to an investigative inquiry from the Law Society that he was likely incapacitated by October 2022 for mental health reasons and that his “ability to practice was effectively nullified by [his] medical issues from January 2023 onwards”.
16On March 19, 2023, Mr. Kivlichan attended the Emergency Department of the Niagara Falls Hospital. The recorded reason for his attendance was alcohol withdrawal. The notes of the attendance are not entirely legible. His discharge diagnosis was ETOH/suicidal ideation.1
17On July 12, 2023, Mr. Kivlichan again attended the Emergency Department of the Niagara Falls Hospital. The recorded reason for his attendance was depression/anxiety. The history stated that Mr. Kivlichan would like to stop drinking, indicated significant drinking and occasional drug use, and also indicated that Mr. Kivlichan was going to detox at Homewood. Medications were prescribed. The discharge diagnosis was ETOH withdrawal.
18On September 14, 2023, Mr. Kivlichan was admitted to the Niagara Falls Hospital. The admitting diagnosis was alcohol withdrawal seizures. Mr. Kivlichan was discharged from hospital on September 21, 2023. The discharge summary stated that most responsible diagnosis was alcohol withdrawal seizures. The follow-up plan/care was discharge directly to a home for sober living, follow-up with the rapid addiction medicine team, and information regarding family physicians accepting new patients.
19On November 22, 2023, Mr. Kivlichan was interviewed by a Law Society investigator. In response to a request to tell the investigator about any addiction that he might have, Mr. Kivlichan answered that his addiction was ”not relevant” because it was the direct result of his anxiety disorder and PTSD for which he had started to receive treatment. While Mr. Kivlichan may have thought that his alcohol use was no longer relevant, this has turned out not to be correct.
20When asked to provide a timeframe in which his alcohol consumption was at an addiction level, he stated that his alcohol use was out of control for four months, in April, May, June and July of 2023. Mr. Kivlichan did not disclose his admission in September 2023 for alcohol withdrawal seizures. This appears to have been an attempt to minimize his alcohol problems.
21In January 2024, Mr. Kivlichan was referred to Dr. Craig Kuhn for an ADHD evaluation. The referral letter indicated that Mr. Kivlichan had faced challenges with alcohol abuse, had underwent treatment, and had been sober since September 2023.
22In March 2024, Mr. Kivlichan was seen by Dr. Felcenbuch Dachis, a psychiatrist, as an out-patient. Mr. Kivlichan reported to Dr. Felcenbuch Dachis that he stopped drinking alcohol in September 2023 and that he had been staying at a sober living facility. The psychiatrist’s impression included a diagnosis of major depression with recurrent episodes of anxiety and panic attacks, and past alcohol use disorder.
23Mr. Kivlichan was seen by Dr. Kuhn and Dr. Felcenbuch Dachis for follow-up in the following months.
24In February 2025, Mr. Kivlichan advised the Law Society investigator that he had relapsed two weeks previously and had gone to hospital in Niagara Falls. He said that he would be entering into private treatment for at least 30 days, following which he would go into a sober living situation. He said that he did not anticipate practising for at least 6 months, if not to late 2025. The records from this February 2025 hospital admission are not in evidence.
25Mr. Kivlichan completed an inpatient program from February 9 to March 9, 2025 at a recovery centre. A letter dated March 20, 2025 from a psychotherapist reported that she had been providing therapeutic support to Mr. Kivlichan since early February, that he had taken all the appropriate steps to ensure long-term sobriety, and that he has significant insight into his alcohol use disorder. The psychotherapist opined that she “had no doubt that Mr. Kivlichan would remain sober”. This opinion was unfortunately soon proven wrong.
26On April 28, 2025, Mr. Kivlichan explained a delayed response by him to the Law Society investigator saying that “I have been in hospital with a terrible bug” and that “my absence was not due to a relapse”.
27The investigator requested the name and location of the hospital, indicating that the hospital records would have to be reviewed. Mr. Kivlichan responded stating that the “hospital admission was for stomach complications and brief suicidal ideation due to ongoing stress”. He stated that he was admitted to hospital “for medical issues which are irrelevant”.
28But by affidavit sworn November 30, 2025, Mr. Kivlichan testified that:
a. He was hospitalized for alcohol withdrawal in February 2025.
b. He was hospitalized for PTSD and alcohol withdrawal in April 2025.
c. He currently resides at a sober living facility in North York.
d. He has remained sober since April 27, 2025.
e. His dishonesty around the April 2025 hospitalization stems from fear and shame related to that relapse.
29Mr. Kivlichan did not come clean with respect to his April relapse and hospitalization until his November 30, 2025 affidavit. His prior statement that his April admission was for irrelevant medical issues was misleading.
30By letter dated November 21, 2025, Dr. Ron Phillipson wrote to the Law Society regarding Mr. Kivlichan’s ongoing treatment and current status. Dr. Phillipson wrote, among other things, that:
a. He has been providing addiction medicine care to Mr. Kivlichan since July 2025.
b. Mr. Kivlichan reports maintaining sobriety and is currently residing at a sober living facility.
c. Mr. Kivlichan continued to demonstrate good insight into his condition and treatment needs and has shown positive progress in his recovery journey and maintains appropriate engagement with his structured living environment.
31While reassuring with respect to the prior eight months, Dr. Phillipson’s letter does not provide (i) Mr. Kivlichan’s history as known to Dr. Phillipson, (ii) the results of any testing or assessment, (iii) a treatment plan, (iv) a prognosis, or (v) any assessment of future risk of relapse or of other mental health issues.
32Steven Singer, owner and proprietor of The Last Stop Therapeutic Community, provided a letter dated November 24, 2025 and an affidavit sworn November 30, 2025. Mr. Singer states that Mr. Kivlichan has been living in the Last Stop Therapeutic Community since April 2025 and that he has maintained continuous sobriety since his arrival. Mr. Singer considers it “highly possible” that Mr. Kivlichan will fully recovery from addiction. Mr. Singer states that he agrees to contact the Law Society immediately if Mr. Kivlichan fails to keep his promise of complete abstinence.
33Mr. Singer’s opinion that full recovery is “highly possible” is a limited, but credible, assurance. That said, we have limited insight into Mr. Singer’s expertise and his knowledge of Mr. Kivlichan’s history. Mr. Singer’s promise to contact the Law Society if Mr. Kivlichan fails to keep his agreement provides some comfort so long as Mr. Kivlichan remains at Last Stop.
Overall assessment
34Since 2022, Mr. Kivlichan has had periods of abstinence and periods of relapse. Relapse has occurred despite Mr. Kivlichan’s stated belief that substance abuse was behind him. Relapse occurred in April 2025 despite the very recent opinion of his psychotherapist. There is no credible basis on which to conclude that there is no, or a very limited, risk of future relapse.
35Mr. Kivlichan has ongoing mental health issues which may be the basis for his substance abuse. It appears that Mr. Kivlichan’s situation has improved from 2023 and that he has had the benefit of medical attention. However, there is no basis on which to conclude that there is no, or a very limited, risk of future deterioration of Mr. Kivlichan’s condition.
36Mr. Kivlichan has not been reliable in his representations to the Law Society. He misled the Law Society for many months following his April 2025 relapse. He did not produce hospital records for his February and April 2025 hospital admissions. As a result, we do not have a complete recent picture. There is good reason to be skeptical about Mr. Kivlichan’s future compliance with his professional obligations in respect of his capacity to practise law.
ALLEGED PAST HARM
37We now turn from evidence of health issues to evidence of issues with clients.
Client A
38In July 2023, Client A complained to the Law Society. His complaint was that Mr. Kivlichan had been non-responsive over the prior six months. Client A said that Mr. Kivlichan had missed a court date in April 2023 which led to an arrest warrant being issued for Client A. Client A also stated that Mr. Kivlichan did not inform him that he had been suspended and failed to meet Client A as had been agreed.
39Client A also raised concern about events prior to 2023.
40Client A retained Mr. Kivlichan on September 15, 2020 to act in respect of a criminal charge of fraud under $5,000.
41Within several weeks of being retained, Mr. Kivlichan attended a pretrial with the assigned Crown Attorney who said that she would consent to a peace bond with full restitution. Client A promptly said that this “sounds good”. He asked “what would I have to do in order to achieve this?””. Mr. Kivlichan responded:
You will have to make full restitution to [redacted]. The sum is over $4,000.
You will pay that to me in trust on top of my fees.
42Mr. Kivlichan confirmed by email that his fee for “the peace bond and resolution” would be $10,000 of which Client A had already paid $1,000. The restitution was to be in addition to the $10,000 and was to be paid into Mr. Kivlichan’s trust account. Mr. Kivlichan stated “The monthly payments are my fees.”
43On May 17, 2022, Client A emailed stating that he had paid “$4,250 on April 18 to cover the restitution” and that “The only balance remaining is around $5,000 that I’m paying monthly”. On May 20, 2022, Mr. Kivlichan confirmed that “As of now, There is just $5,000 remaining I believe”. Mr. Kivlichan did not dispute the prior payment of the restitution amount.
44This is consistent with monthly payments for fees and a restitution payment of over $4,000. This is also consistent with Client A’s complaint in which he said he was being charged $10,000 for fees which were paid monthly plus an amount for restitution. Client A reported a slightly different amount for his restitution payment in his complaint.
45Mr. Kivilichan’s trust account records reflect receipt of $4,250 on April 21, 2022 and monthly receipts (usually of $500) from September 2021 to October 2022. Three larger monthly receipts are recorded in early 2023. A total of $15,570.00 was received.
46On June 13, 2023, Client A texted Mr. Kivlichan, saying that “it’s been 3 months since I finished my payments and my application window is closing this weekend”. Client A then asked “I have one question, is the restitution money with [redacted] already?” to which Mr. Kivlichan said “No it is not”.
47Mr. Kivilichan’s trust records show that he paid the $4,250 from trust to himself the same day that it was received in April 2022. There is no suggestion that any restitution was ever paid. Mr. Kivilichan’s trust records show that he paid the monthly receipts to himself as well, as they were received.
48In June 2023, Client A was arrested for failure to appear. Mr. Kivlichan advised Client A that he was suspended but falsely claimed that his suspension was “for health leave”. Mr. Kivlichan had been suspended for failure to respond to investigative inquiries.
49In a subsequent exchange, Mr. Kivlichan claimed that Client A “paid for your matter, not the restitution”. Client A replied, “I paid you for the matter and restitution, over $14,000”.
50Mr. Kivlichan’s evidence before this panel was that all of the amounts received from Client A were for fees. He denied that the $4,250 was received in trust for payment of restitution.
51There is reason to believe that Mr. Kivlichan misappropriated the $4,250 in April 2022. Client A’s claim that he paid this money for restitution and not for fees is consistent with the objective evidence.
52There is also reason to be concerned that Mr. Kivlichan paid himself the monthly amounts for work that he had not yet done. However, the evidentiary record is not particularly clear as to what work was actually done and when.
53Mr. Kivlichan does not dispute that he failed to serve Client A in the spring of 2023 leading to Client A’s arrest. His position is that this failure resulted from his health problems. Health problems during this period are consistent with medical records that are in evidence.
54In his representations to the Law Society, Mr. Kivlichan stated that he had agreed to repay $5,000 to Client A and he provided a copy of an agreement with Client A. The agreement included acknowledgements by Client A stating that “I hereby recognize there was no misconduct on Robert Kivlichan’s part because of ill-health” and that “I recognize Robert W.H. Kivlichan did not misappropriate any trust funds or funds meant for restitution as I claimed in my initial complaint.”
55In June, 2024, Client A advised the Law Society that Mr. Kivlichan was alleging that Client A was extorting him. Client A told the Law Society he was “very scared”. Client A stated that Mr. Kivlichan said he had a call recording of Client A extorting him, which was false. Client A provided text messages from Mr. Kivlichan which stated:
a. “… I have ALL the funds available. Once the complaint is removed, you will be reimbursed in full. I will not provide the refund and then hope you will keep your word. …”
b. “You will receive the full refund once the complaint is removed”
56It is clear from this evidence that Mr. Kivlichan entered into an agreement with Client A to withdraw his complaint and to sign an exculpatory acknowledgment. Whether this was instigated by Client A or by Mr. Kivlichan, doing so was improper: Law Society of Upper Canada v Hoskinson, 2015 ONLSTH 215. Whether or not Client A made an improper threat as claimed by Mr. Kivlichan does not change the fact that Mr. Kivlichan actively sought a withdrawal of the complaint in exchange for a refund payment.
57To the extent that the issues involving Client A were the product of ill-health, there is a risk of further problems with other clients. For some of these issues, ill-health does not appear to be the likely cause. There are reasonable grounds to believe that Mr. Kivlichan has not acted honourably and with integrity in his dealings with Client A.
Client B
58In January 2023, Client B retained Mr. Kivlichan to represent him in respect of charges of “Over 80” and “Impaired Operation”.
59On March 11, 2023, Client B texted Mr. Kivlichan asking whether he had attended the first appearance the previous day. Mr. Kivlichan responded saying “I attended”. But Mr. Kivlichan had not attended. A bench warrant was issued for Client B on March 10, 2023. Client B was arrested. The failure to attend is consistent with Mr. Kivlichan’s health problems in March 2023.
60On this motion, Mr. Kivlichan testified that “I did send an agent. The agent did not appear” and “I do have evidence to that effect”. Mr. Kivlichan did not produce any such evidence.
61Mr. Kivlichan also testified in cross-examination that he may not have retained an agent to appear for him in the Client B matter but rather for other matters in court that day. Mr. Kivlichan also sought to explain his statement that “I attended” by stating that appearance by an agent was legally an appearance by him.
62Mr. Kivlichan’s evidence is not credible. He did not attend at court. His evidence that he sent an agent appears to be, at best, an incomplete story. His submission that saying to Client B that “I attended” was truthful because he thought he had sent an agent is not believable.
63It may be that Mr. Kivlichan’s judgment was impaired by illness in March 2023. However, we note Mr. Kivlichan’s claim during this motion hearing that “I did send an agent” was a claim that he sent an agent for Client B’s matter which he did not do.
64Mr. Kivlichan again failed to attend court for Client B in June 2023. This is again consistent with the evidence of health problems during this period.
65After Mr. Kivlichan said that Client B should retain new counsel, Client B responded “You just get to run away with the money that I gave you?”. Client B sought a “financial agreement”.
66Mr. Kivlichan responded saying:
just talk to me man I’m no longer communicating by text. If you would like to speak to me, I’m always available, as I said from the word go. I have recordings in the file with respect to my instructions and, unfortunately, your admissions of guilt. I’m available to speak in the morning.
Ontario is a one party consent jurisdiction. You can record a conversation and it’s admissible. I record all my calls with my clients.
67Mr. Kivlichan’s statement that he has recordings with respect to Client B’s “admissions of guilt” is troubling as it appears to have been a threat to breach solicitor client privilege.
68Mr. Kivlichan’s attempted avoidance of written communication is concerning. Mr. Kivlichan’s claim that he recorded his conversation with his client without consent is troubling. Mr. Kivlichan now denies having made a recording, saying instead that he intended to refer in his message to his notes to file and not to an audio recording. This is not credible. We conclude that either Mr. Kivlichan is failing to produce his recording to the investigator or he sought to misled Client B that he did record conversations and to implicitly threaten Client B with disclosure of privileged admissions.
69In an interview with the investigator, the investigator stated that Client B “says you claimed to have recorded your phone calls” to which Mr Kivlichan replied “Absolutely”. Mr. Kivlichan denied that the recording was surreptitious saying that he advised Client B “at the start of it and that would set him off.”
70Mr. Kivlichan’s position with the investigator is inconsistent with his statement to Client B that “Ontario is a one party consent jurisdiction”. If Mr. Kivlichan had advised Client B that he was recording, there would be no need to make this statement nor that “I record all my calls with my clients”.
71If Mr. Kivlichan made recordings, he misled us and failed to produce the recordings. If he did not make recordings, he misled Client B and the investigator.
72Like with Client A, Mr. Kivlichan failed to serve Client B in the first part of 2023. It appears that his health problems were the cause. If his health problems recur, as they have recurred in the past, there is a risk of further failure to serve.
73But also like Client A, there is reason to believe that Mr. Kivlichan did not act honourably and with integrity in his dealings with Client B. If this arises from poor judgment as a result of ill-health, there is the risk of recurrence. However, it is difficult to conclude that ill-health could provide a full explanation given the ongoing inconsistencies in Mr. Kivlichan’s positions.
Client C
74On November 18, 2025, Client C made a complaint about Mr. Kivlichan to the Law Society. The complaint was:
Failure to provide statements/invoices and trust statements accordingly. Failure to follow client directives.
Alleged invoices
75On October 2, 2025, Client C advised Mr. Kivlichan that she had decided to retain other counsel. She said that she did not believe that he had acted in her best interests or followed her instructions and that she had “a right to know what is happening with [her] file, but this has not been done”. She stated:
I have been regularly sending payments to you but have not yet received an invoice. To the best of my calculation, I have spent nearly $25,000.00 with you in the last 6 months but haven’t received a single invoice.
76In Mr. Kivlichan’s response, he did not dispute Client C’s statement that she had spent nearly $25,000 and hadn’t received a single invoice. Mr. Kivlichan said:
I understand your position. I will forward the requested documents within 30 days. However, I will not forward work product you have not paid for.
To say I have not acted in your best interests is both untrue and offensive. I have done my best to guide you through this process and have incurred significant costs in terms of time and billings which have been written off.
77Client C then asked that her file be forwarded to her new lawyer and said, “Please also provide me with invoices for the work your firm completed and trust statement accordingly”. Mr. Kivlichan responded, “Within 30 days. I’m sorry it ended up like this.” Again, Mr. Kivlichan did not claim that invoices had already been sent.
78On November 26, 2025, a Law Society Intake and Resolution counsel spoke with Client C, who said among other things that “Mr. Kivlichan had only provided 1 invoice during the 6 months he was retained”.
79Client C provided the Law Society with a copy of the invoice that she said she received from Mr. Kivlichan. The invoice is from Law Office of Robert Kivlichan, is (i) dated April 29, 2025, (ii) labelled Invoice #1, and (iii) for a fee of $3,000. The invoice states that the $3,000 is an amount written down from 15 hours at $250/hour. It is notable that Client C initially stated that she had not received any invoices. However, we accept that she received this invoice.
80In this proceeding, Mr. Kivlichan has produced copies of six invoices which he says were sent to Client C together with copies of the emails to which the invoices were attached. These invoices do not include the invoice produced by Client C to the Law Society.
81The six copies of invoices produced by Mr. Kivlichan are all from KIVLaw Lawyers (rather than from Law Office of Robert Kivlichan). Notably, each of these six invoices lists all six invoices in a schedule. For example, the March 31, 2025 invoice lists the dates, invoice numbers and amounts of the five subsequent invoices. These cannot be true copies of documents emailed to Client C.
82Mr. Kivlichan’s evidence is that he no longer has electronic copies of these emails or invoices because, to save money, he prints out copies of electronic documents when a file is completed to save costs. We are skeptical of this explanation given the current low cost of electronic data storage.
83There are other issues with the invoices produced by Mr. Kivlichan:
In his evidence, Mr. Kivlichan explained the $250 rate in the April 2025 invoice provided by Client C (as compared to the $400 rate in the invoices produced by him) on the basis that he charged a reduced rate for the initial consultation. Yet, the invoices that he produced included time in March 2025 at $400/hour.
It is troubling that the invoices produced by Mr. Kivlichan show a different firm name than the invoice produced by Client C.
It is troubling that Mr. Kivlichan has produced invoices for time in March and April 2025 while Client C has produced an invoice dated April 29, 2025, which would clearly be for time during the same period.
84Further, the dates on the copies of the emails produced by Mr. Kivlichan do not have a consistent font, which suggests possible document alteration.
85On the evidence before us, we do not accept Mr. Kivlichan’s evidence that these invoices were sent to Client C. This raises serious questions as to Mr. Kivlichan’s credibility and integrity.
Retainer for Client C prior to May 15, 2025
86Recall that Mr. Kivlichan was hospitalized in February and April 2025 and that he has now admitted that he was hospitalized for PTSD and alcohol withdrawal in April 2025.
87On May 15, 2025, the Law Society investigator wrote Mr. Kivlichan noting that he had been in active practising status since May 1, 2025 and asking “Please advise whether you are practising again”.
88Mr. Kivlichan responded that Mr. Kivlichan responded:
I stated to you I was going back to work around the beginning of May 2025. This conversation took place in February 2025.
My practicing status is active because I am in the process of applying for jobs and/or opening my office again.
89However, it appears clear that Mr. Kivlichan had been practising. Client C produced an invoice dated April 29, 2025. The invoices produced by Mr. Kivlichan show work done for Client C in March and April 2025.
90In his representations to the Law Society dated November 17, 2025, Mr. Kivlichan stated, “When hospitalized in April 2024, I did not have any clients at the time.” While this statement refers to April 2024, the context makes it clear that the reference was to April 2025.
91The evidence shows that Client C was Mr. Kivlichan’s client in April 2025. His representation that he did not have any clients at that time is not true on the evidence before us. This is of concern in two respects. The first is that Mr. Kivlichan’s integrity is further impugned.
92The second is that, going forward, it is very difficult to accept that Mr. Kivlichan can be relied on to be candid with respect to his health and his practice status. Mr. Kivlichan hid the fact that he had a relapse in April 2025 and was hospitalized for alcohol withdrawal. He also hid the fact that he was practising at the time.
Offer to Client C
93Recall that Mr. Kivlichan has sought to avoid Law Society scrutiny by payment of money to Client A in exchange for withdrawal of his complaint.
94Similarly, on December 1, 2025, Client C advised the Law Society that:
I just wanted to update you as Mr. Kivlichan called me today at 12:28 pm and I answered not knowing it was him. He was begging me to rescind my complaint I filed with LSO and offering me money back. I will not be rescinding anything and I don’t think his actions are professional.
I have attached my call log to show the call.
95This suggests a further attempt by Mr. Kivlichan to avoid regulatory scrutiny by offering a return of fees. It is notable that this call by Mr. Kivlichan occurred two days before the start of his Tribunal hearing.
96Offering money in exchange for withdrawal of a complaint is misconduct. In the current context, doing so makes it much harder to rely on future candour from Mr. Kivlichan with respect to his conduct and compliance.
Other clients
97The investigator’s affidavit contains evidence with respect to other client complaints. However, the Law Society’s factum and submissions did not address these other clients but rather focused on Clients A, B and C. We simply observe that these client complaints appear to be in respect of periods during which Mr. Kivlichan was ill. On its own, the conduct complained of might not be serious enough to be part of the basis for an interlocutory order. However, we see this as further evidence that future ill health would create a risk of client harm by failing to properly serve.
The investigation
98The Law Society submits that Mr. Kivlichan’s governability is impugned because he has not been truthful and because he has made improper arrangements to avoid regulatory scrutiny. The Law Society further submits that Mr. Kivlichan has not co-operated with the Law Society and has attempted to avoid producing the required information and documents.
99On April 17, 2025, the investigator followed up with Mr. Kivlichan regarding outstanding matters. She finished her message stating “Please advise of your intentions and provide an update on how you’re doing, as has been requested. Again, I would ask that, if you’re struggling just now and you’ve had a relapse, I need to know.” As discussed above, Mr. Kivlichan did not disclose that he was hospitalized for alcohol withdrawal, saying at the time that he had “been in hospital with a terrible bug” and that “my absence was not due to a relapse”.
100In his November 2025 affidavit, Mr. Kivlichan explained this saying “[m]y dishonesty around the April 2025 hospital visit stems from fear and shame related to that relapse”.
101In any event, in May 2025, the investigator advised Mr. Kivlichan that hospital records would be required.
102Mr. Kivlichan initially refused to provide any more records saying that “[t]he hospital admission was for stomach complications and brief suicidal ideation due to ongoing stress, partially related to my inability to move forward” and that “I was admitted to St. Joseph’s for medical issues which are irrelevant”.
103Mr. Kivlichan was subsequently willing to provide records to the assessor himself but was not prepared to have records be provided directly by the hospital to the assessor. His position was that he would only allow relevant records (as determined by him) to be provided to the assessor. His position obviously raised concerns about selective provision of records.
104It appears that an impasse was reached and that the Law Society undertook a comprehensive review of Mr. Kivlichan’s matter. Unfortunately, the Law Society did not substantively engage with Mr. Kivlichan until mid-October 2025. The Law Society’s approach then changed.
105On October 21, 2025, the investigator sent a detailed request for information to Mr. Kivlichan which included detailed requests regarding his health in 2025 and his legal practice since December 2024.
106The investigator confirmed that the Law Society would not accept Mr. Kivlichan providing medical records to the assessor himself but would accept that requested records be sent directly by the relevant health care facility to the assessor. The investigator set a deadline of November 3, 2025 to receive Mr. Kivlichan’s response.
107Mr. Kivlichan responded by letter dated October 21, 2025, but did not provide the requested information. He raised objections and said that he would make best efforts to respond by December 15, 2025. He finished saying:
If that does not work, take me to the Tribunal. I am exhausted with your conduct, the LSO’s conduct, and the lack of participation and discretion provided to a Licensee with a recognized disability.
108On October 27, 2025, Law Society counsel took issue with Mr. Kivlichan’s response, noting that much of what was requested should be available and disputing Mr. Kivlichan’s position that some of what was asked for was not relevant to the capacity investigation. Counsel advised that the matter would be referred to the Proceedings Authorization Committee for its consideration.
109The next day, Mr. Kivlichan provided a consent to an assessment. On November 3, 2025, he substantively responded to only some of the questions asked on October 21, 2025.
110However, Mr. Kivlichan provided no information regarding his health. His general position was that he would only provide further information to the assessor directly himself and, in some cases, to the Tribunal. With respect to “the date(s), reason(s), duration and location(s) of each of your hospitalizations in 2025”, he responded:
I will happily provide that information to the Assessor and, most likely, the Tribunal. You are aware of the hospitalization(s) during 2025 where my capacity was affected.
111The reference to “hospitalization(s) during 2025 where my capacity was affected” is, at best, enigmatic given Mr. Kivlichan’s subsequent disclosure that he was hospitalized for PTSD and alcohol withdrawal in April 2025 at St. Joseph’s Health Center in Toronto and that his “dishonesty around the April 2025 hospital visit stems from fear and shame related to that relapse”.
112Mr. Kivlichan did accept that any relevant medical information would be provided by the hospital/clinician directly to the assessor.
113This application was begun on November 14, 2025.
114It is difficult to confidently assess the purpose of Mr. Kivlichan’s approach to the Law Society investigation since May 2025. His approach may have been designed to hide information and to mislead, which he did. He may have taken genuine issue with providing information to the Law Society as requested during its capacity investigation. Both may be true. However, assuming investigative authority, it is not for the subject of an authorized investigation to determine whether or not to answer the investigator: Law Society of Ontario v Cusack, 2016 ONLSTH 7 and 2018 ONLSTA 7. Mr. Kivlichan has not shown that the investigator did not have the authority to require answers to the investigative requests that were made.
115With respect to confidentiality, Mr. Kivlichan was protected by s 49.12 of the Act, which prohibits disclosure, subject to specified exceptions.
116Had Mr. Kivlichan’s approach been different, it may well be that matters would have proceeded quite differently.
117However, this motion is no doubt in part a consequence of Mr. Kivlichan’s choice not to provide requested information and documents. One of the outcomes of this motion was that Mr. Kivlichan has belatedly disclosed that he misled the investigator regarding his April 2025 relapse.
THE LAW
Can an order be made?
118Section 49.27(2) of the Act limits our authority to order an interlocutory suspension or interlocutory licence restrictions as follows:
The Hearing Division may only make an interlocutory order suspending a licensee’s licence or restricting the manner in which a licensee may practise law or provide legal services if there are reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice, if the order is not made.
119The leading case of Law Society of Upper Canada v Ejidike, 2016 ONLSTH 69, explains this limitation:
The standard of proof is reasonable grounds to believe, not the balance of probabilities.
The factual question is whether there is significant risk of future harm (i) to members of the public or (ii) to the public interest in the administration of justice.
A significant risk does not mean a certainty or a probability but it does not include that which is merely theoretically possible or that is very unlikely to occur.
120The concept of harm to members of the public is clear. The public includes clients, opposing parties, and others.
121The concept of harm to the public interest in the administration of justice is less clear. At the least, direct harm to the administration of justice (for example, not representing clients in court so that bench warrants are issued) is included. For lawyers who represent clients in adversarial proceedings, it is often the case that harm to clients and/or opposing parties and direct harm to the administration of justice arise from the same conduct.
122However, the Law Society’s position is that public confidence in the integrity of the legal profession is at risk here and that the public interest in the administration of justice can be harmed by impairment of public confidence in the legal profession. We generally accept that the impairment of public confidence in the legal professions can harm the public interest in the administration of justice: Law Society of Ontario v Rogerson, 2025 ONLSTH 103 at para 66.
123In its submission, the Law Society relied on principles applicable in conduct applications in which licence revocation is ordered in order to maintain public confidence in the integrity of the profession: Law Society of Upper Canada v Abbott, 2017 ONCA 525 at para 37.
124However, an interlocutory motion is not a penalty hearing. A penalty hearing follows an investigation and a merits hearing. Misconduct must have been proven in a conduct application for a penalty to be ordered. The goals applicable for penalties after a finding of misconduct after a merits hearing and the principles applicable in making interlocutory suspensions/restrictions before a merits hearing are different.
125In considering what may be referred to as indirect harm (as compared to direct harm - that which directly affects clients, parties, or others or the actual operation of the administration of justice) to the administration of justice, it is necessary to consider the particular case and the specific risk of significant harm if an order is not made. While it may be that the risk of indirect harm is often theoretically possible, more is required to suspend a licence on the basis of indirect harm to the public interest in the administration of justice.
126To be clear, the question of the risk of indirect harm is not usually of any practical consequence. While there are motions for interlocutory suspensions /restrictions where there is no significant risk of harm either to members of the public or directly to the public interest in the administration of justice, these are rare. In a typical case, the motion panel is concerned about the practical effect of future conduct on clients, opposing parties, other persons and on actual legal proceedings. It is an unusual case where there is no significant risk of future direct harm yet public confidence in the integrity of the profession would be impaired absent a suspension. Law Society of Ontario v Vieira, 2023 ONLSTH 103 may provide an example.
127In most cases, the central question is whether there is significant risk of harm to members of the public (including clients and adverse parties) or significant risk of direct harm to the administration of justice. Undue focus on indirect harm risks introducing concepts related to penalties into interlocutory cases, where misconduct or incapacity has not yet been decided, where hearsay evidence is admissible, and where the evidentiary standard is the lower threshold of reasonable grounds to believe, as compared to balance of probabilities.
Should an order be made and, if so, what order?
128Usually, the conclusion that an interlocutory suspension or restrictions order can be made leads to the conclusion that such an order should be made.
129That said, it is a significant matter to take away a licensee’s licence to practise on an interlocutory basis. Recognizing the primary importance of the protection of members of the public and the public interest in the administration of justice, it is important to treat the licensee’s rights and interests seriously and to consider whether an order should be made, if an order can be made: Ejidke at para 12.
130Further, an interlocutory suspension should not be ordered where interlocutory restrictions sufficiently mitigate the risk of harm that has been found: Ejidke at para 12. The least restrictive order that sufficiently mitigates the risk of harm should be what is ordered.
131Deciding whether to order a suspension on the one hand or restrictions on the other commonly depends in part on whether the licensee can be trusted to comply with restrictions that are ordered. Where a licensee’s integrity cannot be relied on, restrictions cannot ordinarily be relied on either: Law Society of Upper Canada v McGee, 2011 ONLSHP 70 at para 39, and Law Society of Ontario v De Bartolo, 2023 ONLSTH 134 at paras 37-38.
ASSESSMENT AND CONCLUSION
The positions of the parties
132The Law Society seeks a suspension. The Law Society’s submission is that:
this is a case of dishonesty which requires an interlocutory order, and
Mr. Kivlichan’s integrity cannot be relied on and so a suspension is required rather than merely restrictions on practice.
133Mr. Kivlichan does not concede that any order is required. His position in his affidavit is that his health has improved and that he is receiving appropriate health care. His alternative position is that restrictions should be ordered, namely that:
A colleague in his chambers monitor his practice including reviewing billing, statement(s) of account(s), communications with clients, and the general state of all client matters.
In the alternative, he be employed by this colleague as an associate and that all of his client files would be transferred to other counsel or the client would retain his colleague, and Mr. Kivlichan would cease to hold himself out as a sole practitioner.
134In oral submissions, Mr. Kivlichan further submitted that restrictions could also include mandatory reporting by the health practitioners from whom he receives assistance and the Last Stop therapeutic community where he currently resides.
135Mr. Kivlichan relied on Law Society of Ontario v Stewart, 2019 ONLSTH 118, as being a comparable case in which a thoughtful regulatory and human rights approach was taken to a licensee experiencing similar mental health and substance use challenges.
Analysis and conclusion
136We easily conclude that the s 49.27(2) test is satisfied and that we have the authority to order an interlocutory suspension or restrictions:
Since at least 2022, Mr. Kivlichan has failed to properly serve clients from time to time.
This failure to serve has included failure to attend court with the result that bench warrants have been issued for clients. Mr. Kivlichan has been unable to assist clients during periods of admitted incapacity. It appears that he has failed to effectively advance clients’ cases.
Mr. Kivlichan acknowledges that his mental health and substance abuse have impaired his ability to properly serve clients.
There is a pattern of what appears to be mishandling of trust monies by pre-taking retainer funds and a failure to account to clients.
Mr. Kivlichan appears to have taken money in trust for Client A that was intended for restitution.
In respect of his dealings with Client B, Mr. Kivlichan either misled his client with respect to making audio recordings or has now falsely denied making audio recordings.
In respect of his dealings with Client C, it appears that Mr. Kivlichan has fabricated invoices that he claims to have sent to her.
There is a pattern of attempts by Mr. Kivlichan to cause clients to withdraw complaints to the Law Society by partial return of fees.
Mr. Kivlichan has failed to promptly and completely respond to investigative inquiries from the Law Society in its capacity application. Indeed, Mr. Kivlichan misled the Law Society, including in respect of his April 2025 hospitalization. It appears that Mr. Kivlichan’s failure to co-operate with the Law Society investigation was motivated, at least in part, by a desire to avoid scrutiny.
137The extent to which Mr. Kivichan’s mental health explains these matters, in whole or in part, remains to be seen. We have no expert evidence on which to base a conclusion. Our impression is that mental health has played a part but may not provide a full explanation.
138We are not satisfied that Mr. Kivilichan’s mental health is no longer a concern. His relapse in April 2025 is recent and was hidden from the Law Society. Some of the conduct described above is very recent. We do not have evidence of a treatment plan or of a prognosis. We do not have expert evidence that there is limited risk of future illness affecting Mr. Kivlichan’s professional obligations.
139Accordingly, we find reasonable grounds to believe that there is a significant risk of harm to members of the public and to the administration of justice if an order is not made.
140While Mr. Kivlichan did not concede that this test had been satisfied, his focus in submissions was that restrictions sufficiently mitigated risk of relevant harm and that the Stewart case provided a model to be applied.
141We first observe that the panel’s optimism in Stewart did not prove out. As said in Law Society of Ontario v Stewart, 2023 ONLSTH 153 at para 2:
Mr. Stewart has squandered the opportunity to continue to practise law he was granted in 2019. In addition to repeatedly and cavalierly failing to comply with the terms of the capacity order, he was intentionally dishonest and misled both the Law Society and clients on multiple occasions.
142This does not mean that the first Stewart panel was wrong in its decision at the time simply because things did not turn out as hoped, but it does remind us that caution is appropriate in cases of incapacity by reason of mental illness and substance use disorder.
143The first Stewart matter was not an interlocutory decision. Rather, it was a capacity decision following full investigation, an assessment by a psychiatrist, and a merits hearing that proceeded with the benefit of expert evidence as to (i) the causal effect of Mr. Stewart’s illness on his conduct, (ii) Mr. Stewart’s prognosis, (iii) an appropriate treatment plan, and (iv) appropriate monitoring. No such detailed evidence was before us.
144The capacity order that was made by the first Stewart panel provided for a mandatory treatment plan, suspension in the event of non-compliance, reporting to the Law Society by treating physicians, and employment restrictions for at least one year.
145At this stage, this is not a case like Stewart. While there may be similarities in terms of Mr. Kivlichan’s mental health and substance use, there is no expert evidence similar to that provided in Stewart and no treatment and monitoring plan based on expert evidence.
146Further and significantly, Mr. Kivlichan cannot be relied on. He has not told the truth and he has sought to limit the Law Society’s ability to appreciate his medical condition and its impact. It is not obvious that Mr. Kivlichan’s conduct is fully explained by his health. It may be that Mr. Kivlichan lacks integrity as well as being of ill health.
147We conclude on the evidence before us that the risk of relevant harm is not sufficiently mitigated by restrictions on practice. We conclude that only a suspension will suffice at this time.
148We observe that it is open to Mr. Kivlichan to work co-operatively with the Law Society to attempt to establish reasonable confidence in him and to attempt to obtain expert evidence and a treatment and monitoring plan that would justify restrictions rather than suspension. While a capacity application (as in Stewart) would provide the most likely context for consideration of a proposal, it is open to Mr. Kivlichan to seek variation of our order under s 49.42(1) of the Act based on fresh evidence or a material change in circumstances. We recognize that this motion has come on quickly and that the ability to put forward a proper plan supported by expert evidence has been somewhat limited.
Order
149For these reasons, we ordered on January 6, 2026:
Commencing on January 9, 2026, the respondent’s licence is suspended on an interlocutory basis.
While his licence is suspended, the respondent shall fully comply with the Law Society’s Guidelines for Lawyers Who Are Suspended or Who Have Given an Undertaking Not to Practise.
Any costs to be ordered in relation to this motion are reserved for the panel presiding at the hearing on the merits of any application to which the motion relates.