LAW SOCIETY TRIBUNAL
HEARING DIVISION
Date: April 9, 2026 Tribunal File No.: 24H-138
BETWEEN:
Law Society of Ontario Applicant
- and -
Thomas Joseph Meehan Respondent
Before: Paul Le Vay (chair), Brigitte Pilon, François Turpin Heard: November 25, 2025, by videoconference
Appearances: Bernadette Saad and Tushar Pain, for the applicant Lynda Morgan and Tabir Malik, for the respondent
Summary: MEEHAN – CUPE Motion – While the panel found the court decision to be admissible, only limited weight should be attributed to the findings of fact in the decision because: it involved completely different parties; the proceeding was not focused directly on the Lawyer’s conduct but rather on whether an apprehension of bias by the trial judge precluded a fair trial for the accused; and the Lawyer’s ability to contest the matter was significantly constrained – The Lawyer is not precluded from contesting the findings of fact in the court decision.
REASONS FOR DECISION ON A MOTION
1Paul Le Vay (for the panel):– This is a motion brought by the Law Society of Ontario (LSO) requesting an order that:
the reasons of the Court of Appeal for Ontario in R v Cowan, 2022 ONCA 432 (the Cowan Decision), are admissible evidence in this conduct application;
the findings of fact made in the Cowan Decision at paras 14-34 are admissible as proof of those facts in this application;
the Lawyer is precluded from re-litigating those facts in this application; and
that the costs of this motion be determined by the panel hearing this conduct application on its merits.
2The Lawyer’s position is that the Cowan Decision may be admitted only as narrative evidence and not as proof of any fact. He takes the position that the findings in the Cowan Decision are not entitled to be given any weight in these proceedings. In the alternative, he says that paras 25-34 of the Cowan Decision are not admissible as proof of any fact against the respondent. In the event any factual findings are found to be binding, he asks that he be permitted to lead further evidence about those facts.
3For the reasons set out below, we find that the Cowan Decision is admissible. However, despite some overlap on certain factual issues, only limited weight should be attributed to the findings of fact in the decision, given that it involved completely different parties; that the proceeding was not focused directly on the Lawyer’s conduct but rather on whether an apprehension of bias by the trial judge precluded a fair trial for the accused; and that the Lawyer’s ability to contest the matter was significantly constrained.
4The Lawyer is not precluded from contesting the findings of fact in the Cowan Decision by the doctrine of abuse of process.
FACTS
5The respondent Thomas Joseph Meehan (the Lawyer) was called to the bar in 2002 and has been practising criminal law as an Assistant Crown Attorney since then.
6He was assigned to prosecute a charge of first degree murder against Andrew Cowan. Mr. Cowan had purposely driven his vehicle off the road at high speed. His passenger, who was his best friend, was killed. Mr. Cowan survived but sustained a serious brain injury.
7The trial took place in August 2017. Justice Gorman of the Superior Court was the trial judge, sitting with a jury.
8The Lawyer and Justice Gorman were friends. This was disclosed by the Lawyer to defence counsel prior to the trial, who did not object to Justice Gorman presiding.
9On August 23, 2017, the jury returned a conviction of guilt for second degree murder. The sentencing phase of the trial remained to be completed. That evening, the Lawyer, accompanied by his articling student and the officer in charge of the investigation, went for drinks with Justice Gorman. Defence counsel was not advised, nor present. Later that evening, the Lawyer and the judge went for dinner by themselves.
10Shortly thereafter, defence counsel was made aware of these events. The defence brought an application for a mistrial before Justice Gorman on December 11, 2017. She dismissed the motion. The next day, at the sentencing hearing, Justice Gorman sentenced Mr. Cowan to life in prison, setting the parole ineligibility period at ten years.
11On October 12, 2017, Mr. Cowan, through his aunt, submitted a complaint to the Law Society about Mr. Meehan’s conduct. On November 3, 2017, the Law Society responded, advising that the concerns raised were not something that the Law Society can deal with and that, as the matter involved the exercise of the Lawyer’s discretion as a representative of the Crown, the concerns could be addressed to the Ministry of the Attorney General (MAG). The Lawyer was advised by the Law Society that this response had been sent.
12In August 2018, MAG imposed a ten-day suspension without pay on the Lawyer for having drinks and dinner with Justice Gorman after the verdict. Mr. Meehan grieved this decision. An arbitrator reduced the suspension to five days.
13Mr. Cowan appealed his conviction. His principal ground of appeal, anchored in fresh evidence, was an allegation of reasonable apprehension of bias by the trial judge, resulting in a miscarriage of justice. Two separate arguments were made:
The trial Crown (the Lawyer) made inadequate disclosure to defence counsel of the nature and extent of his friendship with the judge, thereby preventing defence counsel from properly considering whether to object to the trial judge presiding.
The judge’s decision to attend the drinks session and then the dinner, taken alone or together, established a reasonable apprehension of bias.
14As part of the fresh evidence on appeal, MAG delivered an affidavit from the Lawyer. He was cross-examined by Mr. Cowan’s lawyer and re-examined by the Crown.
15In June 2022, the Court of Appeal allowed the appeal on the reasonable apprehension of bias ground and ordered a new trial, finding that there was a reasonable apprehension of bias on the part of the trial judge. In particular, the Court held that:
Unbeknownst to Mr. Cowan, the Lawyer and the judge had agreed, because of their friendship, not to appear on the same case after an appeal in 2016. The Lawyer also did not disclose that he had attempted to have the case reassigned after learning that Justice Gorman would preside. This occasioned a miscarriage of justice and jeopardized the accused’s right to a fair trial.
The constellation of facts concerning the post-verdict drinks and dinner would lead a reasonable and right-minded person to conclude that the trial judge might have been biased, thus constituting a reasonable apprehension of bias.
16The Law Society then commenced this conduct application on November 26, 2024. The Lawyer was initially represented by counsel from MAG. However, the Law Society took the position that this relationship presented a conflict, citing the Lawyer’s grievance of the employment suspension, in which he was opposed in interest to MAG, as well as its understanding that the Lawyer may claim that he had asked to be taken off the Cowan case but that his employer (MAG) had declined to remove him. Thereafter, the Lawyer retained new counsel.
ISSUES ON THE MOTION
17The Law Society’s motion raises the following issues:
Is the Cowan Decision admissible in this conduct hearing?
Are the findings of fact in the Cowan Decision admissible as proof of those facts?
Would allowing the Lawyer to lead evidence in the conduct hearing in relation to those findings of fact constitute an abuse of process?
Is the Cowan Decision admissible?
18This question can be disposed of succinctly. Both the Law Society and the Lawyer agree that the Cowan Decision is admissible in the conduct hearing as part of the narrative of relevant events. This agreement on authenticity is also consistent with Rule 11.7(2) of the Tribunal’s Rules of Practice and Procedure, which provides that s 15(4) of the Statutory Powers and Procedure Act, RSO 1990, c S.22, applies to the admission of evidence. That provision in turn allows for the admission of documents where the Tribunal is satisfied as to authenticity.
19However, the issue of admissibility is separate and distinct from whether, once admitted, any findings of fact in the Cowan Decision are conclusive and binding as proof in the conduct hearing: British Columbia (Attorney General) v Malik 2011 SCC 18 at para 35.
Are the findings of fact in the Cowan Decision admissible as proof of those facts?
20Both the Law Society and the Lawyer agree that the analytical framework for determining the weight and significance to be ascribed to the findings and conclusions of a previous decision is set out in Malik.
21Malik establishes that a judgment in a prior proceeding is admissible as proof of its findings and conclusions, provided that the parties are the same or were themselves participants on similar or related issues, subject to the assessment of weight. The prejudiced party will have an opportunity to lead evidence to contradict or lessen weight, unless precluded from doing so by the doctrines of res judicata, issue estoppel, or abuse of process: Malik, at para 7.
22The parties to this motion therefore agree that this analysis concerning the weight to be attributed to the prior findings involves an analysis of the following factors:
the identity of the parties or participants;
the similarity of the issues to be decided;
the nature of the earlier proceedings (including any different burdens of proof);
the opportunity given to the prejudiced party to contest it; and
all of the varying circumstances of the particular case.
23These reasons will therefore first consider these factors in assessing what weight should be attributed to the findings and conclusions in the Cowan Decision. Before doing so, it is important to be precise about the findings of fact in the Cowan Decision which are at play.
24The Law Society’s notice of motion asks for an order that the “findings of fact made in the appeal decision at paragraphs 14 to 34 [of the Cowan Decision] are admissible as proof of those facts in these proceedings”. That position was initially reiterated by the Law Society in oral argument. However, as the argument unfolded, the Law Society focused its motion on paras 14-16 and 28‑29 of the Cowan Decision. Many of the other paragraphs initially identified by the Law Society consist of summaries of the parties’ submissions, statements of legal principles or conclusions of law by the court. While these paragraphs may be admissible to define the narrative and may assist in framing the context for the issues to be determined, they are not specific findings of fact which are potentially binding on a hearing panel: Groia v Law Society of Upper Canada 2015 ONSC 686 at para 132 (Groia), Law Society of Ontario v Bush, 2022 ONLSTH 133 at paras 62-65.
25The paragraphs finally identified by the Law Society as being in issue and which dealt with specific findings of fact were:
14The Crown and the trial judge met during their first appearance on the same case in 2012. Since then, the Crown has attended social functions at the trial judge’s home on seven or eight occasions and is a regular fixture at her family reunions.
15The Crown disclosed this friendship to the defence as soon as he learned that the trial judge would be presiding. He did so twice more before trial and raised it on the record after the trial judge’s opening instructions to the jury. Counsel for the defence consented to proceeding before the trial judge.
16However, unbeknownst to the appellant, the Crown and the trial judge had agreed, because of their friendship, not to appear on the same case after an appeal in 2016, less than two years before the appellant’s trial. Further, the Crown did not tell the appellant that he attempted to have the case reassigned to another Crown after learning that the trial judge would preside.
28The appellant’s trial related to the most serious offence in the Criminal Code, R.S.C. 1985, c. C-46, – murder. The trial had lasted three weeks. The trial was not over – the trial judge and counsel had just fixed a date for the sentence component of the trial. Within minutes of the jury’s verdict, the trial judge called Crown counsel to suggest they meet for a drink. She did not invite anyone else. The trial judge then agreed to join the Crown, a Crown articling student and a senior police officer involved in the trial at a nearby restaurant. Defence counsel was not invited or present.
29Once together inside the restaurant, the trial judge referred to the absence of defence counsel at least twice, whether jokingly or not. The trial was discussed, albeit briefly. After the drinks meeting broke up, the Crown called the trial judge and invited her to dinner. The trial judge accepted and they went to a different restaurant. The four-person drinks meeting, in a public setting, lasted about an hour. The two-person dinner, in a public setting, lasted about two hours.
Identity of parties
26As a matter of fact, there is no identity or overlap of parties at all between the two proceedings. The parties to the Cowan Decision were the Crown as prosecutor and Mr. Cowan as the criminally convicted appellant. The parties to this conduct hearing are the Law Society and the Lawyer. Accordingly, this factor weighs in favour of according little weight to the decision. However, this factor is tied closely to the fourth factor: whether the prejudiced party is afforded an opportunity to contest the original finding, an issue that is discussed further below.
Similarity of the issues
27The issue before the Court of Appeal was whether there was a reasonable apprehension that the trial judge was biased and if so whether that gave rise to a miscarriage of justice. The issue in the conduct hearing is whether the Lawyer engaged in conduct lacking in honour or integrity contrary to Rules 2.1-1, 2.1-2 and 5.1-3 of the Rules of Professional Conduct (Rules) by: failing to disclose to defence counsel the true nature and extent of his personal relationship with the trial judge, including the fact that they had previously agreed not to appear on the same matters; and unbeknownst to the defence, meeting the judge for drinks and dinner immediately following the verdict.
28The Law Society argues that the issue in the Court of Appeal was whether there was a reasonable apprehension of bias resulting in a miscarriage of justice. This in turn required the Court to make findings of fact relating to what the Lawyer did or did not disclose to the defence and what transpired between the Lawyer and the judge post-verdict. It submits these are the very same questions that the conduct hearing will explore. The Lawyer emphasizes that because the legal issues are distinct, the nuances of the underlying facts will be important, as will the Lawyer’s understanding of certain facts and his analysis of what he will be required to disclose.
29There is significant overlap with respect to the factual issues in the two proceedings. Taken on its own, this would militate in favour of according some weight to the findings of fact in the Cowan Decision: Malik paras 42-43. However, the Divisional Court in Groia at para 128 cautioned against this where the licensee’s participation in the prior proceeding was for a different purpose. In any event, all of the factors must be assessed together, and in accordance with the particular circumstances of the case at issue including, importantly, the nature of prior proceedings and whether the prejudiced party had an opportunity to contest them. We will address this issue next.
Nature of prior proceedings and opportunity to contest
30While the Law Society acknowledges that the Lawyer was in the role of a witness with respect to the fresh evidence in the Court of Appeal, and therefore did not have an opportunity to frame the issues, it argues that he had a fair opportunity to defend his conduct and to address the facts. It argues that an examination of the evidence he gave in the fresh evidence process and the findings of fact in the Cowan Decision show that his evidence was accepted by the Court of Appeal, but that he is now trying to change his evidence. This last argument has more relevance to the next issue (abuse of process) and will be dealt with there.
31The Lawyer argues that he had no opportunity to contest the Court’s findings and no ability to appeal the decision. As a mere witness, he could not shape the issues or make submissions, nor could he call his own witnesses. This was by design. The appeal was not about the Lawyer’s conduct or his rights. Rather, it was about trial fairness to the accused, Mr. Cowan, and the impact on that of any reasonable apprehension of bias by the trial judge. The Lawyer was not personally affected or bound by the outcome of the appeal. For this reason, lawyers in the criminal trial process are not allowed to intervene on appeal to defend their own conduct: R. v Contreras, 2018 ONCA 328. Simply put, the Lawyer was a mere witness, whose evidence was led by a party (the Crown) that had sought to discipline him for the very conduct in issue. Finally, the Lawyer argues that the Law Society had told him in 2018 that it did not intend to pursue discipline proceedings against him. He could not have known, when he gave his evidence in respect of the appeal, that the Law Society would change its mind and pursue a conduct hearing.
32In the circumstances of this case, these factors point towards according much less weight to the findings of fact in the Cowan Decision. The Lawyer was a witness in that proceeding. Like any other witness, the evidence led from him in his affidavit by MAG and elicited from him in cross-examination by Mr. Cowan was focused on the appeal issues rather than the Lawyer’s professional conduct, and was intended to be for the respective benefit of those parties. The Lawyer was bound to provide truthful evidence but had no ability to make submissions on his own behalf or to assert his own rights. Importantly, this limited his ability to shape or frame the issues.
33The Lawyer pointed in his factum to a specific example of the impact of this upon his position: despite having given evidence on cross-examination about having disclosed to defence counsel fairly detailed evidence of the extent of his friendship with the judge, including invitations to family weddings and to events at her residence, the Crown stated in its factum on the fresh evidence application that the details of their friendship had not been provided.
34This can be contrasted with other cases where the licensee has had greater participatory rights in the prior proceeding. For example, in Bush, the licensee was found in contempt for knowingly or recklessly misrepresenting facts to the Court when representing a client in garnishment proceedings. Before the contempt finding was made, a show cause hearing was held in which the licensee was able to lead evidence and make submissions on his own behalf. There was also an appeal path available to him. Even though the licensee was not a party to the underlying proceeding, he had, essentially, the rights of a party in the contempt proceeding.
35This factor therefore points towards attributing less weight to the findings in the prior proceeding. As discussed below, it also impacts the abuse of process analysis.
Other circumstances
36The fresh evidence for the Court of Appeal proceeding was gathered in 2020 and 2021. In January 2018, the Law Society had told the Lawyer that it did not intend to pursue the complaint made by Mr. Cowan any further. Thus, the Lawyer would not have had any reason to believe that the evidence he was being called to give might later play an important role in a proceeding before this Tribunal. In our view, this can be considered as a factor in determining the weight to accord the findings. As will be discussed below, it is also a factor in the abuse of process analysis.
37In conclusion, the Malik factors point towards according little weight to the findings of fact in the Cowan Decision.
Is the Lawyer precluded from leading evidence in relation to the findings of fact by the doctrine of abuse of process?
38The question of whether the abuse of process doctrine precludes any re-litigation or challenge to the findings of fact in the Cowan Decision is a separate question from whether the decision is admissible and, if so, what weight the findings of fact should be accorded.
39Abuse of process is related to the doctrines of issue estoppel and collateral attack. The latter are particular applications of the broader doctrine of abuse of process. They are aimed at precluding re-litigation of issues that have been previously decided, and in aid of promoting finality of decisions, which is an important principle in ensuring respect for the adjudicative process and the rule of law.
40Abuse of process is a flexible doctrine, which can be applied where the strict requirements of issue estoppel (privity/mutuality of parties) are not met but where allowing litigation to proceed would nonetheless violate the principles of judicial economy, consistency and finality in a manner that compromises the integrity of the administration of justice. The primary focus is the preservation of the integrity of adjudicative function. However, it is important that the doctrine not be applied in a manner that would create unfairness: Toronto (City) v Canadian Union of Public Employees (C.U.P.E.) Local 79, 2003 SCC 63.
41The issue of whether re-litigation of prior findings of fact was precluded before this Tribunal by the doctrine of abuse of process was considered in Groia. In that case, the appeal panel overturned the hearing panel’s conclusion that it was not bound by the courts’ findings but that to permit re-litigation would amount to an abuse of process. While the appeal panel declined to consider abuse of process in the context of the courts’ substantive decisions because they did not contain any findings about Mr. Groia’s conduct that could be said to be essential to those decisions, it found that the Court’s costs decision did contain such findings. However, it found on the basis of fairness that the licensee was not precluded by the doctrine of abuse of process from challenging the findings.
42The Divisional Court upheld the appeal panel’s conclusion. It summarized its conclusion at para 125 of its reasons:
125The appellant was not a party to the proceedings on the judicial review application. His conduct was but one factor upon which the OSC relied for the relief that it sought. Further, the issue before the courts on the judicial review application was not whether the appellant had engaged in professional misconduct. It was whether the trial judge had lost jurisdiction by failing to do more to address the appellant's conduct. There is no denying that both the application judge and the Court of Appeal made adverse comments on the conduct of the appellant but they did so in relation to the question that was before them. That question was not the same as the question that was before the Hearing Panel.
43In Law Society of Ontario v Corcoran, 2023 ONLSTH 97, in the underlying criminal proceeding, the Crown had sought a mistrial on the basis that the licensee’s conduct of the trial was so ineffective that trial fairness could not be achieved. That application was granted. In doing so, the court made a number of findings of fact relating to the licensee’s poor conduct of the case. The licensee then failed to withdraw from the matter, so the Crown brought a further application to remove him from the record in the ongoing proceeding. This application was also granted. The Court made a specific finding that the licensee’s conduct did not meet the standards of a competent lawyer as required by the Rules of Professional Conduct. The conduct application which followed specifically alleged that the licensee had failed to provide legal services to the standard of a competent lawyer, contrary to Rules 3.1-1 and 3.1‑2.
44The Law Society took the position that the licensee was precluded by the abuse of process doctrine from re-litigating the findings of fact made in both applications. However, the panel found that the doctrine applied only to the removal decision. In doing so, it distinguished between cases such as Law Society v Piersanti, 2018 ONLSTA 10, where the licensee had been a full party in the prior proceeding with every opportunity and incentive to challenge the findings of fact, from cases like Groia and Law Society v Rappaport, 2023 ONLSTH 56, where the focus was to advance the interests of the client, and the lawyer was not given the opportunity to engage in a defense of his own conduct.
45The panel in Corcoran noted that there was a third line of cases where the licensee, although not a party, was provided with a fair opportunity to defend his or her impugned conduct. The examples provided were Law Society v Borden, 2012 ONLSHP 171, where costs had been awarded against the lawyer personally pursuant to Rule 57.07 of the Rules of Civil Procedure, and Bush, above, in which the lawyer had been held in contempt. The doctrine applied because “the lawyer had a fair opportunity to respond to the allegations that were made, and it would not have been otherwise unfair to preclude the lawyer from re-litigating the issues”.
46The panel proceeded to distinguish the mistrial decision, where the lawyer was not a party and the focus was on whether the fairness of the trial had been compromised, with the removal decision, where the lawyer had a fair opportunity to file evidence and to directly contest the issue of whether he had provided ineffective assistance to his client during the trial. As in Borden and Bush, the lawyer had a fair opportunity to respond to the allegations regarding his competence.
47Applying this jurisprudence to the facts of the present matter, we find that the Lawyer ought not to be precluded from challenging the findings of fact in the Cowan Decision at the conduct hearing. This case is much closer to Groia and Rappaport than it is to the other cases cited. The Lawyer was not a party in the Cowan appeal proceeding. The focus of the case in the Court of Appeal was on whether there was a reasonable apprehension of bias on the part of the trial judge that compromised Mr. Cowan’s right to a fair trial, rather than directly on the Lawyer’s conduct. As a mere witness in such a proceeding, the Lawyer had limited ability to shape the narrative and, unlike the licensees in Piersanti, Borden, and Bush, or the removal motion in Corcoran, no real opportunity to respond to allegations about his own conduct. Nor would he have appreciated the jeopardy that might follow from an adverse finding of fact, given that the Law Society had told him that the complaint made against him had been closed. It would not be fair to foreclose his ability to respond in the conduct hearing.
48Before us, the Law Society relied heavily on an argument that the findings of fact in the Cowan Decision were all consistent with the Lawyer’s evidence in that proceeding, and that it would therefore be abusive to allow him to lead evidence which contradicted the testimony he had given to the Court of Appeal. However, this argument does not address the real issue in CUPE: whether in the circumstances the integrity of the judicial function will be compromised if a party is allowed to re-litigate findings of fact. Put differently, the focus in an abuse of process motion is on the integrity of the judicial findings, rather than on the underlying evidence.
49Further, the evidence that the Lawyer may give will not necessarily be in contradiction with his earlier testimony. Rather, there may be additional facts, context, explanation or nuance that he may wish to provide. It will be up to the panel hearing this matter to determine how relevant and probative that evidence may be. To the extent that the Lawyer gives evidence that is truly inconsistent with his sworn testimony before the Court of Appeal, he can be impeached.
ORDER
50Both parties have asked that the costs of this motion be deferred and determined at the merits hearing and we so order.
51We order that:
The Cowan Decision may be admitted as evidence at the conduct hearing.
The findings of fact at paragraphs 14-16 and 28-29 should be accorded only limited weight in accordance with these reasons.
The Lawyer is not precluded from leading evidence at the conduct hearing in relation to those findings of fact.
The costs of this motion be determined by the panel hearing this conduct application on the merits.