LAW SOCIETY TRIBUNAL
APPEAL DIVISION
Date: March 9, 2026 Tribunal File No.: 25A-016
BETWEEN:
James Garnet Battin Appellant
- and -
Law Society of Ontario Respondent in appeal
Before: Paul Le Vay (chair), Suzanne Clément, Rebecca Durcan, Annamaria Enenajor, Pam Hrick
Heard: November 24, 2025, by videoconference
Appearances: Norman Emblem, for the appellant Chad Skinner, for the respondent in appeal
Summary: BATTIN – Appeal – The appeal panel found that the Lawyer failed to demonstrate that the hearing panel’s penalty decision contained an error in principle or was demonstrably unfit – There was no issue of procedural unfairness giving rise to a reversable error – The Lawyer’s appeal was dismissed.
REASONS FOR DECISION
1Paul Le Vay (for the panel):– Following a three-day hearing in which the hearing panel heard from five witnesses, including James Garnet Battin (the Lawyer), and considered extensive documentary evidence, it found that the Lawyer had failed to conduct himself with integrity contrary to Rule 2.1-1 of the Rules of Professional Conduct (the conduct decision).1
2The panel then held a penalty hearing. The panel considered a victim impact statement provided by the Lawyer’s former client (the Client), as well as character evidence proffered by the Lawyer, and the parties’ submissions. The panel ordered the Lawyer’s licence revoked and that he pay costs of $44,135 (the penalty decision).2
3The Lawyer appeals the penalty decision. In his factum, he enumerated a number of grounds. However, in oral argument, he focused on the reasonableness of the chosen penalty, arguing that his misconduct was less serious than comparable cases and that the hearing panel had erred in failing to properly take this into account in determining penalty. The Lawyer also argued that the Law Society erroneously referred to the possibility that he may have engaged in the misconduct on other occasions and that this may have had an impact on the panel. The Lawyer also challenged the quantum of the costs award but did not provide grounds for this challenge either in his factum or in oral argument.
4For the reasons that follow, we dismiss the appeal.
FACTUAL BACKGROUND
5The Lawyer was called to the bar in 1980. He was a sole practitioner in Tillsonburg, where he grew up. His practice included criminal, family, and real estate law. He has served as a Deputy Judge of the Ontario Small Claims Court. He had no history of professional misconduct prior to this matter.
6The Lawyer accepted Legal Aid Ontario (LAO) certificates and had a number of clients on certificates. He had been a member of the local LAO family law panel for more than 25 years.
7The Client is a woman of modest means. She separated from her spouse in June 2017 in acrimonious circumstances. She applied for and received a LAO certificate that month for 24.5 hours for representation on family law issues, preparation, attendance at a first case conference, and authorization for a restraining order. She retained the Lawyer to do the work in July 2017. The Lawyer accepted the certificate. In doing so, he agreed to be bound by LAO’s terms and regulations, which include a prohibition on private billing and on accepting money in addition to amounts paid under the certificate.
8As required by the certificate, the Client signed a direction to the Lawyer authorising him to hold any money recovered by way of settlement or judgment and to apply such money to LAO for the cost of legal services, estimated at $20,000. The direction requires the Lawyer to notify LAO of the receipt of any settlement funds and to hold them until authorized to release them by LAO.
9As further required by the certificate, the Client signed a contribution agreement with LAO where she agreed to repay costs up to $20,000 out of any recovery.
10The main asset of the Client’s marriage was the matrimonial home. After the Lawyer accepted the certificate, the Client retained him privately to do the legal work relating to its sale, which was not covered by the certificate. Although LAO’s normal practice would have been to place a lien on the home, LAO failed to do so, which was an error on its part. The home was sold on May 30, 2018. The Lawyer billed the Client $919.59 for his work on the sale. The net amount remaining from the sale was $31,175.29, which was held in his trust account “pending settlement of the matrimonial file.” The Lawyer did not advise LAO of the private retainer for the sale or that he was holding these funds.
11The Lawyer submitted four accounts to LAO in the period November 20, 2017 to December 23, 2018, totalling 22.6 hours. Each account was accompanied by a declaration that no monies had been received for costs or settlement or were being held in trust by him with respect to the same or any related or ancillary matter before or after the effective date of the certificate.
12In early 2019, the Lawyer wrote to LAO to request additional hours to prepare for and to proceed to trial. He disclosed the sale of the matrimonial home, but not that he had handled the sale privately, nor that he was holding the proceeds in trust. On March 6, 2019, LAO denied the request for trial authorization. The Lawyer did not respond or appeal.
13The Client’s evidence was that the Lawyer told her that LAO had denied her case for a trial, that she would have to pay him privately, and that if she went to trial all the money held in trust from the sale of the matrimonial home would be used up. She instructed him to settle. The Lawyer’s evidence was that he considered LAO’s letter to be a cancellation of the certificate, though he later acknowledged this was a mistake. His position was that the Client knew that she would have to retain him privately for a trial. There was no written private retainer for a trial, nor did the file contain anything in writing confirming the terms of an oral retainer.
14The Client’s litigation was settled on April 10, 2019. Under the settlement, which was submitted to the Court, 50% of the trust amount plus $3,000 was paid to the Lawyer in trust (for a total of $18,587.65), with the balance going to the former spouse’s lawyer in trust. The Lawyer then submitted a final account to LAO for 0.1 hours. With this, he reported that there had been no settlement of the litigation and that he was not holding any settlement funds in trust.
15The Lawyer billed the Client $11,849.58 and took payment from his trust account, leaving a balance in trust of $6,738.07. In May 2019, he reported to LAO that he was holding this amount in trust from the sale of the matrimonial home. He did not disclose that he had transferred $11,849.58 to himself as payment for the private retainer. LAO advised that it was owed $3,977.67 by way of cost recovery. The Lawyer paid that amount to LAO and remitted the balance ($2,760.40) to the Client, together with an account on the private retainer. The vast majority of time on the account predated March 6, 2019, the date that LAO had denied coverage of the trial. In sum, the Lawyer received 85% of the Client’s settlement of her matrimonial proceedings, representing a year’s worth of disability payments, her sole source of support.
16The Client complained to LAO, which on November 28, 2019 upheld the complaint and directed the Lawyer to return the amount of $11,849.58 he had taken from the settlement. In December 2019, the Lawyer wrote to say he would adjust his account from his private rate of $350 to the LAO rate of $136.43 and remit the difference of $7,952.14 to the Client. However, he did not actually do this until November 15, 2023, which was after the Law Society commenced this conduct application. The Lawyer filed an application for reconsideration to LAO. It was rejected in 2020. The Lawyer repaid the balance of the funds ($3,897.57) to the Client in early 2025, after the conduct decision had been released.
The conduct decision
17The hearing panel found that the Lawyer failed to comply with the terms of the LAO certificate, as he was bound to do. This included keeping LAO apprised of changes in the Client’s financial circumstances and the reporting of settlement monies held in trust. In particular, not only did he fail to report to LAO that he had received the funds in trust, but he ticked boxes on LAO accounts that no monies were being held in trust. They found his explanation for these failures to be not credible.
18They also found that he denied advising LAO, in a report, that there had been a settlement or that he was holding funds in trust, even after these matters were incorporated into a court order. The first time he reported to LAO that he was holding trust funds was after he had paid himself from them.
19The panel found that the Lawyer’s actions demonstrated a deliberate pattern of omission and misreporting concerning the funds, and that he had misappropriated them.
20The panel rejected the Lawyer’s attempt to deflect blame onto LAO for failing to register a lien on the property, holding that the Lawyer was bound by an irrevocable direction to hold up to $20,000 until LAO authorized release. His disbursement of the amount to himself was a clear breach of the direction, which it found to be professional misconduct.
21The panel preferred the Client’s explanation that she was happy with the Lawyer’s services, saw no need to cancel the certificate and had instructed him to settle, over the Lawyer’s explanation that the March 6, 2019 letter from LAO denying funding for the trial amounted to a cancellation of the certificate and that the Client had privately retained him for the trial. It pointed out that the Lawyer had docketed and billed LAO for work after March 10. The absence of any record of the private retainer as well as the timing of the settlement were also found to corroborate the Client’s version of events.
22The panel noted that privately billing for related services during the currency of an existing certificate was clearly contrary to LAO rules and was professional misconduct. This was especially troubling as the majority of the work that was privately done was completed prior to March 6, 2019. It appeared to the panel that the Lawyer was trying to be paid for trial preparation work he had done prior to authorization for this being sought from LAO.
23Finally, the hearing panel was concerned that the Lawyer had made late repayment to the Client, and had repaid only some of the misappropriated monies.
24For all of these reasons, the panel found that the Lawyer had breached Rule 2.1-1 of the Rules of Professional Conduct which requires a lawyer to carry out the practice of law and discharge his responsibilities honourably and with integrity.
The penalty and costs decision
25The panel subsequently held a penalty hearing and thereafter ordered that the Lawyer’s licence be revoked and that he pay costs of $44,135.
26The panel found that this was a case to which the presumption of revocation applied since it involved the misappropriation of trust funds. The panel pointed out that all that was required to attract the presumption was a single transaction. Further, the fact that funds may have been returned, or that no loss had been suffered, did not matter. On this issue, the panel pointed out that the Lawyer had not returned any of the funds until after the conduct application had been filed, and that he had not returned the full balance until after the conduct decision was released.
27The panel also pointed out that presumptive revocation had been applied in certain cases involving dishonest LAO billing. It referred to the Lawyer’s misrepresentations and non-disclosure to LAO, and to his breach of the undertaking he had given. It found that the Lawyer’s dishonesty, which was directed at appropriating scarce public resources allocated to providing legal services to those most vulnerable and in need, was an egregious breach of trust and integrity.
28The panel then referred to the fact that the presumption of revocation could only be rebutted by showing exceptional circumstances that would clearly provide reassurance concerning the integrity of the profession to licensees and to the public. The panel considered mitigating factors, including his lengthy career without a disciplinary finding and his public service. However, it found that these factors did not tip the balance. The Lawyer did not provide evidence of extenuating circumstances, nor provide reassurance that the conduct was out of character or unlikely to recur.
ISSUES
29The issues we must decide on this appeal are the following:
What is the applicable standard of review?
Did the hearing panel err in its penalty decision in ordering the revocation of the Lawyer’s licence?
Should the costs order be changed?
SUBMISSIONS AND ANALYSIS
Standard of review
30The Lawyer submits that the standard of review is reasonableness. The Law Society submits that the standard of review on a penalty decision is whether there has been an error in principle or the penalty is clearly unfit. We agree with the Law Society as to the standard of review in this matter: Law Society of Ontario v Culliton, 2022 ONLSTA 17 at para 7.
Did the hearing panel err in ordering the revocation of the Lawyer’s licence?
Submissions
31The Lawyer’s overarching argument is that revocation is unreasonable.
32He submits that his conduct ought to have been viewed through the lens of his error in interpreting LAO’s March 6, 2019 letter as a cancellation of the certificate (at a point where he had spent all of the hours under the certificate in any event). He then did further work in the March and April 2019 period under what he believed was an oral private retainer with the Client (though his counsel candidly acknowledged that the panel in the conduct decision had determined that there was no such retainer agreement). He submitted that following the settlement he had reported to the Client on April 26, 2019, including accounting to her for his fees, and that she had then written to him expressing appreciation.
33The Lawyer’s submission was that this fact pattern could be contrasted with many other Tribunal cases in which the licensee was billing both LAO as well as a client privately and which featured “time stacking”, by which he meant that both the client and LAO had been billed for the same services. As the Client had been billed for different services at a time when he believed that the LAO certificate had been cancelled, in his submission, the degree of misconduct was significantly different than the other cases cited and warranted a lesser penalty.
34The Lawyer also submitted that the Law Society raised in its argument on penalty that the Lawyer may have engaged in similar conduct on other LAO matters. The Lawyer submitted that this was not permitted as the finding in the conduct decision was limited to the one incident. The Lawyer submitted that it was not possible to identify the impact of this concern on the panel’s penalty decision.
35The Law Society argued that the penalty decision was in line with the Tribunal’s jurisprudence. In particular, having found that the Lawyer had misappropriated trust funds, presumptive revocation applied. One instance of misappropriation was sufficient to engage this principle. The Lawyer had wrongly taken more than $11,000. Even in the face of the conduct proceedings, he had taken five years to repay the amount in its entirety.
36The Law Society submitted that the panel’s finding that there were no exceptional circumstances was correct. The Lawyer’s community service and lack of discipline record, while relevant to a mitigation analysis under the Aguirre factors, was not relevant to the exceptional circumstances analysis required in cases of presumptive revocation.
37The Law Society submitted that the Lawyer was not prejudiced by the erroneous reference by the Law Society in argument that the Lawyer’s conduct may have been part of an ongoing practice in other cases as he had actively participated in the penalty hearing and had been afforded an opportunity to respond.
Analysis
38The Lawyer has failed to demonstrate that the hearing panel’s penalty decision contains an error in principle or is demonstrably unfit. Nothing in the penalty decision reveals any error in the panel’s reasoning in reaching this conclusion.
39The Lawyer’s appeal fails to address the key findings by the hearing panel in the conduct decision, in particular its finding that he misappropriated trust funds.
40The Lawyer was holding the proceeds of the sale of the matrimonial home in his trust account pending the settlement of the matrimonial dispute. Those funds were therefore subject to the direction signed by the Client that they be held and applied to LAO for the cost of legal services. The panel found that not only did the Lawyer not seek permission from LAO to release them to himself, but that he failed to disclose their existence to LAO until after he had paid himself. He thus took the funds contrary to his own obligations to LAO, as well as those of his client.
41With respect to the Client, the hearing panel found that any private retainer arrangement between Lawyer and Client would have been contrary to LAO rules. Any mistaken understanding by the Lawyer that the certificate had been cancelled is irrelevant, and, in any event, this explanation is inconsistent with the final bill he rendered to LAO, which was for time docketed after the date he claimed to believe the certificate had been cancelled (March 6, 2019).
42Moreover, the hearing panel made a finding of fact that there was no private retainer in place for this work. The Lawyer is bound by that finding, which he did not challenge on appeal. This left him with no colour of right whatsoever to pay the trust funds to himself. Doing so, as the panel found, was misappropriation.
43Misappropriation attracts the presumptive penalty of revocation. The lack of integrity, honesty, and trustworthiness that such conduct reflects demands this. It is well established in this Tribunal’s jurisprudence: for example, Law Society of Ontario v Wilkins, 2021 ONLSTA 15 at paras 107-109. The Lawyer’s counsel could not point to any case where presumptive revocation had not applied where there was a single instance of misappropriation. The Lawyer did not contest that he had failed to show exceptional circumstances in the penalty hearing. There is no error in principle in the panel’s reasoning on these issues.
44We would add that the panel’s finding that the Lawyer had engaged in a deliberate pattern of omission and misreporting to LAO, including with respect to the funds he was holding, provides additional justification for the penalty decision. As the panel held at para 38, “acts of dishonesty directed at the scarce public resources allocated to providing legal services to those most in need and vulnerable is an egregious breach of trust and integrity”. The Lawyer’s actions to deprive LAO of funds earmarked pursuant to a binding direction for recovery by it are caught by this description of dishonesty. The panel cited applicable Tribunal jurisprudence applying presumptive revocation in cases involving dishonest LAO billings to justify its decision: Law Society of Ontario v Khan, 2018 ONLSTH 131; Law Society of Ontario v Yantha, 2018 ONLSTH 94; and Law Society of Ontario v Bahimanga, 2019 ONLSTA 25. Given the dishonest nature of the Lawyer’s conduct in this case, the panel made no error in principle in revoking his licence on this basis.
45We also note that it was troubling to the hearing panel that the vast majority of the work for which the Lawyer billed the Client privately related to work done prior to March 6, 2019, when the certificate was still active. Thus, the Lawyer’s own explanation for the demarcation between the LAO certificate and the “private retainer” fails. As well, the panel was right to express concern over the fact that it took years for the Lawyer to pay any of the money back, and that he did not pay all of it back until after the release of the conduct decision.
46As noted above, the Lawyer also raised an argument on appeal about hearing fairness. This related to the Law Society counsel’s submission in the penalty hearing that the Client’s case may not have been a one-off situation. What the Law Society did in its submissions was to refer to a concern raised by LAO in its investigation report about whether or not the matter was a one-off or part of an ongoing practice by Mr. Battin. We note that during the conduct hearing, there was an exchange between the panel chair and the Law Society in which it is made clear that no findings are to be made with respect to any other matters.
47The panel was therefore already aware of the issue. The Lawyer had an opportunity to respond to the Law Society’s submission at the penalty hearing. There is no indication that the submission played any role in the outcome, nor could it have as a practical matter given the application of presumptive revocation outlined above. There is therefore no issue of procedural unfairness giving rise to a reversible error. That said, the submission does not appear to have been helpful for the panel, and the Law Society might have considered this more carefully before making it.
Costs
48The Lawyer did not provide any grounds for overturning or changing the costs order. The panel’s reasons on costs were grounded in the jurisprudence of the Tribunal and the quantum was supported by a bill of costs submitted by the Law Society. There is no basis upon which to disturb the panel’s order.
CONCLUSION
49The Lawyer’s appeal is dismissed.
50We encourage the parties to come to an agreement on costs. If the parties cannot agree, the Law Society may file written submissions of no more than four single-spaced pages, apart from a bill of costs and any authorities, within 14 days of the date of these reasons.
51Any responding submissions should also be in writing, no more than four single-spaced pages in length, and will be filed within 28 days of the date of these reasons.