LAW SOCIETY TRIBUNAL
HEARING DIVISION
Tribunal File No.: 24H-116
BETWEEN:
Law Society of Ontario
Applicant
- and -
Glenn Patrick Bogue aka Spirit Warrior
Respondent
Before: Malcolm M. Mercer (Chair), Laura Arndt, Kathleen Lickers
Heard: April 8, 2026, by videoconference
Appearances:
Kristin Bailey, for the applicant
Respondent, self-represented
Amanda Ross, friend of the Tribunal
Summary:
BOGUE – Spirit Warrior – Practising While Suspended – Civility – The Lawyer was found to be incapacitated by reason of mental illness and his licence suspended in 2020 – The Lawyer did not deny the alleged conduct occurred but said that he is not subject to regulation by the Law Society because he is an unconquered Métis individual – The Lawyer’s motion to recuse the panel was dismissed.
The Lawyer made numerous court appearances while his licence was suspended – The Lawyer did not defend the allegations based on a disability – The Law Society submitted that the conduct application should proceed – The Friend of the Tribunal submitted that the application should be diverted to a capacity proceeding – The panel outlined a unified approach to addressing issues of capacity within a conduct application.
The panel found that the Lawyer failed to comply with the suspension order and failed to treat the court with courtesy, civility, good faith and/or encourage public respect for the administration of justice – The panel found the Lawyer to be unwilling to be subject to regulation by reason of mental illness – The panel directed the parties to provide submissions on the appropriate conduct order.
REASONS FOR DECISION ON FINDINGS
1Malcolm Mercer (for the panel):– In this conduct application, the respondent (SW) is alleged to have engaged in professional misconduct by:
Practising law and/or held himself out as able to practise law when he was not entitled to do so because his licence was suspended by order of the Law Society Tribunal.
Failing to treat the court with courtesy, civility, good faith, and/or encourage public respect for the administration of justice.
2SW was previously found to be incapacitated by reason of mental illness. His licence was and continues to be suspended as a result.
3SW claims that he is not subject to the authority of the Law Society Act, RSO 1990, c L.8; the Law Society; or the Tribunal because he is an unconquered Métis man – having been born on Turtle Island and having elected to be treated as unconquered. He does not deny the alleged conduct occurred but says that his conduct is not subject to regulation under the Law Society Act.
4A Friend of the Tribunal was appointed as a result of SW’s incapacity finding in a prior application and the issues raised in this application. The Friend submits that SW should not be found to have engaged in professional misconduct because he has been found not to have capacity to fulfil his obligations by reason of mental illness and because his misconduct resulted from his mental illness. The Friend submits that this matter should be dealt with as a capacity matter rather than as a conduct matter.
5For the following reasons, we have concluded that SW’s conduct should be found to be and treated as professional misconduct and that a further capacity application would not be appropriate.
THE FINDING OF INCAPACITY AND THE SUSPENSION ORDERS
6In 2017, the Law Society brought a motion for an interlocutory suspension and a capacity application.
7SW’s licence to practise law was suspended on an interlocutory basis: Law Society of Upper Canada v Bogue, 2017 ONLSTH 119, and Law Society of Ontario v Bogue, 2019 ONLSTH 52.
8In 2019, SW was found to be incapable of meeting his obligations as a licensee. The hearing panel found that SW had a mental illness and was likely suffering from a delusional disorder of the grandiose and persecutory subtypes: Law Society of Ontario v Bogue, 2019 ONLSTH 107.
9In 2020, SW’s licence to practise law was suspended indefinitely until certain conditions had been met. One of those conditions was a satisfactory report from a psychiatrist confirming that SW is no longer incapacitated: Law Society of Ontario v Bogue, 2020 ONLSTH 21.
10No such report has been provided. SW’s licence remains suspended.
11SW appealed the finding of incapacity and the suspension order. His appeal was dismissed by the Appeal Division because he did not perfect his appeal. His further appeal to Divisional Court was dismissed as frivolous, vexatious and an abuse of process: Glen Patrick Bogue (a.k.a. Spirit Warrior) v Law Society of Ontario, 2023 ONSC 3654.
REQUESTS FOR RECUSAL
12SW seeks the recusal of members of the panel on two separate bases. He seeks:
- my recusal on the basis that:
a. I have been “convicted by the Alliance of Indigenous Nations Tribunal”; and
b. I “elected to accept a Report from Dr. Klassen, who has zero experience in Indigenous issues or mindset or “Lens”, and whom Malcolm knew, or ought to have known, had zero knowledge of any of the issues in SW’s Book Series The 5 Books of Isis.”
- the recusal of Ms. Arndt and Ms. Lickers on the basis that:
a. they are “both STATUS Indians of the Six Nations who have surrendered to the racist Indian Act”; and
b. “the 6 Nations, like the British, trespassed onto Metis Lands in S. Ontario, which is a different perspective”.
13The legal principles applicable to motions for recusal for bias were summarized in James v Law Society of Ontario, 2018 ONLSTA 6 at para 9 as follows:
The test for a reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would that person think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly?
There is a strong presumption of judicial impartiality that is not easily displaced.
The onus of demonstrating real or perceived bias is on the party alleging bias. This burden is a high one, and it requires cogent evidence.
The specific issues raised by the applicant in support of his recusal motion are to be construed in light of the entire proceedings – regard must be had to the cumulative effect of all of the relevant factors.
The fact that an adjudicator has ruled adversely on an interlocutory motion or in a previous case on the credibility of either a defence witness or the accused does not necessarily result in a reasonable apprehension of bias. Something more is required showing a predisposition by the adjudicator with respect to the accused’s credibility, such as to amount to a pre-judgement of the result of the second hearing.
Adjudicators should not accede too readily to allegations of actual or perceived bias. Although it is important that justice be seen to be done, it is equally important that adjudicators discharge their duty to sit and do not, by acceding too readily to the applicant’s suggestions, encourage parties to believe that, by seeking the disqualification of an adjudicator, they will have their case tried by someone thought to be more likely to decide the case in their favour.
14As to the request to recuse me, SW alleges that I have been “convicted by the Alliance of Indigenous Nations Tribunal”.
15Early in this application, SW filed what he said was an order of the Alliance of Indigenous Nations (A.I.N.) International Tribunal (the AIN Tribunal). This purported order required that this application be transferred to a tribunal of SW’s choosing and that neither I nor the then discipline counsel appear at future “LSO hearings”. The purported order threatened a fine and an arrest warrant for failure to obey the order. A subsequent purported order declared all orders of the “LSO Tribunal are ‘of no force and effect,’ pursuant to S. 52 of the Constitution and International Law” and ordered joint and several enforcement of monetary damages. A further purported order removed me for bias, and fined both me and discipline counsel. Current discipline counsel is said to be subject to a purported order as well.
16By endorsements dated December 20, 2024 and January 20, 2025, I declined to act on the purported orders of the AIN Tribunal. I concluded that this purported tribunal did not have the authority claimed by SW.
17SW’s current position is that:
Tell the Panel from today Malcolm must Recuse as he was convicted by an UNDRIP Article 40 Tribunal (AIN) acknowledged by CIRNAC and Gitxaala (70), and protected by S.35 which is The Supreme Law of the Land pursuant to S 52 of the Constitution.
At the very least, a party to the Order cannot opine on that Tribunal’s validity.
18In our opinion, SW has not established that the AIN Tribunal actually exists or has any relevant legal authority. This is the same conclusion that I reached in Bogue v Law Society of Ontario, 2025 ONLSTH 86 at paras 72-76. We do not accept that an adjudicator must recuse themselves from determining whether there is an order with legal authority that results in their recusal. A party cannot allege a fact as the basis for recusal and assert that the subject of the recusal request cannot determine that fact.
19As to Dr. Klassen’s opinion, there is nothing in prior decisions in this matter with respect to Dr. Klassen that shows reasonable apprehension of bias. To the contrary, Dr. Klassen’s opinion may provide a defence to this application but it does not provide any basis for a finding of misconduct. In any event, SW’s recourse is on appeal.
20In our view, SW has not satisfied the test for reasonable apprehension of bias in respect of myself.
21Six Nations of the Grand River is a Haudenosaunee community. Ms. Arndt and Ms. Lickers are both Six Nations band members. Ms. Arndt is Mohawk. Ms. Lickers is Seneca.
22The claim that any person registered under the Indian Act is disqualified in this case is without merit. The claim that any Haudenosaunee person is disqualified from adjudicating in a case involving a Métis person is without merit.
23As said in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at para 33:
Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues.
24There is no basis to conclude that that Ms. Arndt’s or Ms. Lickers’ minds are closed to the evidence and issues in this case because of their identities and experiences.
25In our view, SW has not satisfied the test for reasonable apprehension of bias in respect of Ms. Arndt or Ms. Lickers.
COURT APPEARANCES BY SW FROM 2019 TO 2024
26It is not in dispute that:
SW appeared before Justice Tranmer of the Superior Court of Justice in Kingston, Ontario as agent for the applicant in relation to a habeas corpus application on April 3, 2019: Baldwin (Grand Chief Buffalo Eagle) v Ontario (Attorney General), 2019 ONSC 2238.
SW was found guilty of illegally practising law by acting on behalf of PC and JP before the Quebec Court of Appeal on August 7, 2019.
On August 16, 2019, SW attended before Justice Lacelle of the Superior Court of Justice in Cornwall and attempted to make representations and file material on behalf of RL on a habeas corpus application.
On February 13, 2020, SW attended before Justice Hackland of the Superior Court of Justice in Ottawa on behalf of MG on a civil matter. SW identified himself as “Spirit Warrior” and stated that he was there as the Chief Justice of Kinakwii Nations and the ASMIN Nation.
On January 19, 2021, SW appeared before Master McAfee purporting to be amicus curiae for EM and then referred to himself as a process server: York Condominium Corporation No. 60 v Munro, 2021 ONSC 487.
On April 14, 2022, SW appeared before Deputy Judge Ong of the Superior Court of Justice in Cobourg Ontario on behalf of RT in relation to a small claims matter.
On June 9, 2022, SW appeared again for RT before Deputy Judge Ong.
On January 10, 2023, SW attended before Justice Deluzio of the Ontario Court of Justice in Bancroft. He advised he was the Indigenous lawyer for EM and identified himself as “Spirit Warrior.”
On January 12, 2023, SW sent an email to the Belleville Crown’s office regarding EM and appeared that day on his behalf before Justice of the Peace King in the Ontario Court of Justice in Belleville.
On January 16, 2023, SW appeared on behalf of EM before Justice of the Peace Peltzer in the Ontario Court of Justice in Belleville. After the Crown informed the Court that the Lawyer was suspended, the Lawyer stated that he was present as an Indigenous representative.
On January 23, 2023, SW again appeared on behalf of client EM before Justice of the Peace Dombrowsky in the Ontario Court of Justice in Belleville and attempted to address the matter on EM’s behalf.
On January 23-24, 2023, SW sent emails to the Belleville Court and Crown’s office regarding service of material on the habeas corpus application.
On January 27, 2023, SW appeared on behalf of EM before Justice Hurley in the Superior Court of Justice in Belleville in relation to a habeas corpus application. The Court refused to allow the Lawyer to speak on EM’s behalf or represent him in any capacity.
On February 16, 2023, SW appeared on behalf of JC before Justice Williams in the Ontario Court of Justice in Midland.
On March 2, 2023, SW appeared on behalf of JC before Justice Maund in the Ontario Court of Justice in Midland.
On September 19, 2023, SW appeared on behalf of JK before Justice of the Peace Oudekerk in the Ontario Court of Justice in Windsor.
On September 20, 2023, SW appeared before Justice of the Peace Reanaud in the Ontario Court of Justice in Windsor for JK
On February 27, 2024, SW appeared on behalf of KN before Justice Shamai in the Ontario Court of Justice in Toronto.
On November 5, 2024, SW filed an application for habeas corpus on behalf of DB in the Superior Court of Justice in Pembroke. SW attended at the Superior Court of Justice on November 27, 2024, and attempted to act as a litigation representative for DB.
THE POSITIONS OF THE PARTIES REGARDING ALLEGED PRACTISING WHILE SUSPENDED
27It is obvious that SW’s court appearances were while his licence was suspended and contrary to the suspension orders.
28SW’s position is that the Law Society Act and the suspension orders do not apply to his conduct because he is an un-conquered Indigenous Individual and that he is entitled to appear as an Indigenous representative as a matter of Indigenous Laws and s 35 of the Constitution Act, 1982.
29As a result, his position is that he has not engaged in professional misconduct. His further position is that the Law Society Tribunal does not have the authority to find that he engaged in professional misconduct or to make a conduct order under the Law Society Act.
30Because SW might have a medical defence to this application, I appointed the Friend to assist: Law Society of Ontario v Bogue, 2025 ONLSTH 56. As I observed at para 22:
It appears that SW’s illness, as found in the capacity application, may have caused his alleged misconduct conduct. SW may have a medical defence to the allegations of professional misconduct. An obvious problem is that SW’s illness would appear to prevent him from accepting that he is ill. It is troubling that SW’s illness may prevent him from asserting a potentially viable defence.
31Dr. Phillip Klassen testified in the 2019 capacity hearing following which SW was found to be incapacitated and the suspension order was made. Dr. Klassen’s expert evidence was accepted by that hearing panel and formed a basis for the finding of incapacity and the suspension order.
32Dr. Klassen provided a further report for the purpose of this application. While SW was not prepared to be examined by Dr. Klassen, Dr. Klassen’s report noted that:
Mr. Bogue was aware that he is proscribed from the practice of law, thus Mr. Bogue was likely capable of appreciating the nature and quality of the alleged conduct as described above, with the possible exception of issues of courtesy, civility, and good faith; this gentleman’s grandiosity, and the sense that he is on a “mission” [both driven by delusional thinking] likely impinge on his ability to moderate himself in these areas.
Mr. Bogue would have been aware that his actions were wrong, from the perspective of the LSO, but given that Mr. Bogue sees himself as an important part of a very grand (if delusional) mission, [Dr. Klassen does] not believe that Mr. Bogue would have felt that he was engaging in moral wrongdoing.
Mr. Bogue’s condition did/does preclude him from complying with his professional obligations. In particular, his grandiose delusions, and his unshakable belief in the righteousness of his acts and the import thereof, override (to him) professional obligations, or adherence to convention generally speaking.
Mr. Bogue’s delusional disorder is the latent construct driving the alleged conduct. The conduct would not have occurred but for the condition form which he suffers.
33SW does not accept Dr. Klassen’s opinion because he does not accept that he has a mental illness or that his beliefs are driven by delusional thinking. SW does not rely on Dr. Klassen’s opinions in his response to the allegations of misconduct in this application.
34Rather, SW’s position is that Dr. Klassen was, and is, wrong and that he should not have been suspended. However, SW’s licence was and is suspended.
35The Law Society accepts Dr. Klassen’s opinion. However, the Law Society’s position is that this conduct application should not be dismissed as a result of SW’s illness.
36The Friend also accepts Dr. Klassen’s opinion. The Friend’s position is that this conduct application should be dismissed because SW’s conduct was caused by his illness. The Friend submits that this matter should be diverted to a capacity application.
37To summarize, SW does not defend this application on the basis of his health. He does not seek to explain or excuse his conduct by a disability, which he denies having. The Law Society and the Friend accept that SW’s conduct was as a result of his illness. The Law Society submits, and the Friend disputes, that professional misconduct should nevertheless be found.
COURTESY, CIVILITY AND GOOD FAITH
38In the context of the appearances mentioned above, SW is alleged to have failed to treat the court with courtesy, civility, good faith, and/or encourage public respect for the administration of justice.
39Again, there is no dispute as to what actually happened:
- In the appearance of February 13, 2020, SW’s statements to Justice Hackland included the following:
a. SW advised Justice Hackland, “I am currently suspended with a restriction to come back in in six months”.
b. SW asked the so-called “Grand Chief” to “order [Justice Hackland] to step down and the Crowns to leave the courtroom”.
c. SW declared the court “closed” and stated, “We’ve ordered you to leave.”
d. SW stated “The Grand Chief is here and now we are leaving. The abuse of Indigenous people are going to stop in this country and the Canadian people and Indigenous people want to. This is not reconciliation, Your Honour, and you know it.”
e. SW described the interpreter as a “mouthpiece”, stated “we are here so far for an hour and a half, no ceremony. We told you at the start, we’re tired of it, we’re not putting up with it.”, alleged that Justice Hackland was “already in violation of Daniels 54 and Tsilhquot’in” and “in dishonour of the Crown and you are guilty of treason under the... Treaty of Paris of 1763”.
f. SW stated that “the bench has been ordered to stand down.”
g. SW stated that “Your Honour, you’re in dishonour and so we’re not going to take it anymore”.
In the appearance of January 10, 2023, SW attended court proceedings as an “Indigenous Lawyer” by the name of “Spirit Warrior” and failed to identify himself as a suspended lawyer.
In the appearance of September 20, 2023:
a. SW represented that his name was Spirit Warrior.
b. SW took the position that the Justice of the Peace did “not have any jurisdiction this afternoon to do anything with Mr. King except release him” and that the “Ontario Court does not have constitutional power.”
40The Law Society’s position is that this was professional misconduct. SW disputes this. The Friend’s position is that some, but not all, of this was professional misconduct.
41The position of the Law Society and of the Friend is that this conduct was a result of SW’s illness. SW’s position is that he is not ill.
42Leaving aside the legal issues raised by SW and the impact of SW’s mental health, we consider that the conduct reviewed above falls into four general categories:
SW was not candid with the court as to his legal name and his licensing status. His reference to “six months” could be a representation that his suspension was time-limited or may have reflected his expectation at the time.
SW took issue with the court’s authority and jurisdiction consistent with his position in this application. In some cases, SW did not do more than assert his legal position.
On February 13, 2020, SW purported to direct and make orders to the court rather than simply make submissions to the court.
On February 13, 2020, SW personally disparaged Justice Hackland.
43With respect to SW’s failures to be candid as to his name and licensing status, this was improper. Failing to disclose information to the court which would reveal the suspension of his licence is also improper.
44Giving orders to and personally disparaging a judge, as SW did in his appearance before Justice Hackland, is clearly improper. A licensee must act respectfully to a judge in court. SW did not do so.
45As to the positions taken by SW in court, these positions were without legal merit. However, Justice Moldaver made clear for the majority in Groia v Law Society of Upper Canada, 2018 SCC 27, that professional regulation has a limited role in addressing legal submissions in court. As Justice Moldaver put it in paras 89 and 91:
Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. Many legal principles we now consider foundational were once controversial ideas that were fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged — not stymied by the threat of being labelled, after the fact, as “unreasonable”.
… inquiring into the legal merit of a lawyer’s position to conclude that his or her allegations lack a reasonable basis would discourage lawyers from raising well-founded allegations, impairing the lawyer’s duty of resolute advocacy.
46At para 94, Justice Moldaver went on to say:
… there is good reason why a law society can look to the reasonableness of a legal mistake when assessing whether allegations of impropriety are made in good faith, but not when assessing whether they are reasonably based. The “good faith” inquiry asks what the lawyer actually believed when making the allegations.
47This case is far from Groia. While SW’s legal submissions were manifestly unreasonable, it appears clear that he actually believed his submissions to be well founded. That his belief is delusional makes this case unique and raises difficult questions of principle, given the rationale for Justice Moldaver’s analysis. There is no practical need in this case to make a finding on this issue.
48Subject to the following overall analysis and excluding the substance of his legal submissions, we conclude that SW failed to treat the court with courtesy, civility, good faith, and/or encourage public respect for the administration of justice. We make no finding of misconduct with respect to the substance of the legal submissions to the courts.
SW’S LEGAL POSITION IN RESPECT OF THE ALLEGED MISCONDUCT
49SW’s overall legal position may generally be described as a “freeman on the land” or a “sovereign citizen” position.
50In a complicated and rather impenetrable theory, SW generally rejects the authority of the Constitution Act, 1867 and the Constitution Act, 1982. He described his position in submissions before us. His position made no sense to us. In any event, his position has been rejected by the courts by which we are bound: Bogue v Bogue, 2023 ONSC 1642 at paras 18-32, and Glen Patrick Bogue (a.k.a. Spirit Warrior) v Law Society of Ontario, 2023 ONSC 3654 at paras 11-15.
51SW asserts a further position that is premised on alleged Indigeneity. He asserts that anyone born on Turtle Island can identify as being Indigenous and must be treated as such. He denies the concept of collective rights and asserts that all Indigenous individuals, as defined by him, may self-determine. This is an extraordinary claim.
52Again, the courts have rejected SW’s claims: Bogue v Bogue, 2023 ONSC 1642 at paras 33-42, and Glen Patrick Bogue (a.k.a. Spirit Warrior) v Law Society of Ontario, 2023 ONSC 3654 at paras 11-15.
53Justice Corbett found SW’s claims to be “pseudo-legal nonsense that has been rejected repeatedly by the courts”.
54In a previous application, SW asserted that developments in Canadian law since Justice Corbett’s decision have undermined that decision. I examined and rejected this assertion in Bogue v Law Society of Ontario, 2025 ONLSTH 86 at paras 30-55.
55SW continues to assert that still further legal developments substantiate his position. He now relies on the decisions of the British Columbia Court of Appeal in Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (Gitxaala), and of the New Brunswick Court of Appeal in J.D. Irving, Limited et al. v Wolastoqey Nation, 2025 NBCA 129 (Wolastoqey Nation), which, he submits, amount to a change in law justifying reconsideration of his position as to the effect of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).
56For context with respect to UNDRIP, we note
In 2007, the United Nations adopted UNDRIP.
In 2016, the Government of Canada endorsed UNDRIP.
In 2019, the British Columbia legislature enacted the Declaration on the Rights of Indigenous Peoples Act (the BC UNDRIP Act) and subsequently amended the Interpretation Act (BC) by adding s 8.1 to address both s 35 of the of the Constitution Act, 1982 and UNDRIP.
In 2021, Parliament of Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (the Federal UNDRIP Act).
There is no Ontario legislation implementing UNDRIP as a matter of provincial law. Parliament’s jurisdiction to enact an UNDRIP Act, and the legal effect of that Act, depends on the ordinary division of powers: Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48 at para 66, and References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 149.
57The question becomes the effect, if any, of Gitxaala and Wolastoqey Nation on SW’s regulation as a licensee under the Law Society Act.
58Gitxaala confirms that UNDRIP engages the common law interpretive presumption of conformity: Gitxaala at paras 60-64, 78, 82, and 83.This does not mean, as SW contends, that UNDRIP has become the supreme law.
59That said, we see no basis at all to conclude that Gitxaala or Wolastoqey Nation had the effect of entitling anyone born on Turtle Island to be able to self-identify as being Indigenous and, on that basis, to obtain the benefit of s 35 of the Constitution Act, 1982, or the interpretative benefit of UNDRIP.
60As to Wolastoqey Nation, SW cites para 161 which states that “UNDRIP, which has been incorporated into Canada’s positive law, is binding and can be used to interpret Canadian law”. However, this is merely a recitation of the submission of the Elsipogtog First Nation not a finding of the court. The decision in Wolastoqey Nation does not assist SW.
UNDRIP
61While we accept that UNDRIP may provide interpretative assistance, we do not accept that SW’s position is consistent with UNDRIP.
62SW’s position is that Indigenous individuals, as he defines the term, are Aboriginal peoples of Canada for the purposes of s 35 of the Constitution Act, 1982. This claim is unsupported by binding authority that has considered the meaning of s 35: R v Desautel, 2021 SCC 17 at paras 18-23.
63In any event, UNDRIP uses the terms Indigenous peoples and Indigenous individuals but does not expressly define the word “indigenous”. However, the intent of UNDRIP is obvious. The UNDRIP preamble includes the following:
Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,
Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources….
64UNDRIP addresses colonization and dispossession and uses the term indigenous to describe peoples who have been colonized and dispossessed. There is no apparent support in UNDRIP for the assertion that everyone born in Canada, if they so elect, are considered to be Indigenous under UNDRIP. It would be absurd to conclude that peoples and individuals without a history of colonization and dispossession are to be treated as Indigenous peoples and individuals under UNDRIP.
65Indeed, SW’s position is fundamentally inconsistent with recognition of Indigenous rights and reconciliation with Indigenous peoples in Canada. Treating everyone, other than foreign-born immigrants, as being Indigenous, if they want to be so treated, would render the concept practically meaningless.
66As to individual and collective rights, Article 7 of UNDRIP illustrates that individual and collective rights are separately addressed in UNDRIP (emphasis added):
Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.
Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.
67As for self-determination, Articles 3 and 4 of UNDRIP address self-determination as a right of Indigenous peoples, not of Indigenous individuals:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
68SW asserts that Article 44 of UNDRIP specifies that all rights recognized under UNDRIP are guaranteed to individuals; i.e. that all collective rights are also individual rights. But that is obviously not the intent of Article 44:
All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.
69We think it inappropriate to delve more deeply into UNDRIP and its developing place in Canadian law.
70But we also note that SW has made no effort to interpret the Law Society Act applying the principle of conformity. His approach is to assert that UNDRIP is the supreme law, not an interpretative tool.
Conclusion
71SW is a licensee under the Law Society Act. As such, s 33 of the Law Society Act requires that he not engage in professional misconduct.
72We conclude that SW’s assertions otherwise have no basis in law.
73Even if they did, it would make no sense that SW would be able to enjoy the privileges of being licensed under the Law Society Act without being subject to the obligations of a licensee under the Act and the authority of the Law Society and the Tribunal under the Act.
THE IMPACT OF SW’S INCAPACITY/DISABILITY
74The Friend’s position is that SW’s conduct is not professional misconduct because his conduct was caused by mental illness. The Friend’s position is that the Law Society should bring a capacity application to deal with incapacity rather than a conduct application.
75The Law Society’s position is that a finding of professional misconduct is permitted and appropriate in the usual context of this case.
76As SW does not accept that he is incapacitated by mental illness, he does not defend this application on that basis.
The jurisprudence to date
77It is not uncommon that mental illness is treated as being a mitigating factor in fashioning an appropriate penalty. But the current issue is not the appropriate penalty.
78As well as being a mitigating factor in determining penalty, the Tribunal has also sometimes found mental illness to be a “defence” to allegations of misconduct. The cases apply two different approaches in reaching this conclusion.
79One approach proceeds on the basis that misconduct cannot be found where a licensee is incapable of complying with their professional obligations. The other approach is the application of human rights law and the conclusion that a finding of misconduct would be prohibited discrimination on the basis of disability.
80The Friend and the Law Society agree that these approaches should be reconciled.
81We start our analysis by reviewing the Tribunal’s jurisprudence to date with a focus on the factual context in which decisions were made:
- Law Society of Upper Canada v Vader, 2013 ONLSHP 8
Ms. Vader was found to have failed to co-operate with a Law Society investigation because she suffered from a mental illness.
As the panelist observed that “if some other recognized medical condition, such as a broken back, paralysis or coma, interfered or prevented a licensee from fulfilling an obligation to the Law Society I am satisfied that such a situation would be considered in determining whether the licensee had engaged in professional misconduct for a failure to co-operate, respond or provide information to the Law Society. The existence of mental illness should be treated no differently”.
- Law Society of Upper Canada v Luzius, 2013 ONLSHP 193
This was also a failure to co-operate case. The panel applied Vader and concluded that it “is sufficient that the mental illness truly and fundamentally renders them incapable of performing their professional obligations” to avoid a finding of misconduct and that “setting the bar at this level reflects a humane and informed approach to questions of mental health while upholding the primary mandate of regulating the legal profession in the public interest.”
- Law Society of Upper Canada v Robinson, 2016 ONLSTH 200
This was another failure to co-operate case. The panel reviewed a number of cases which had considered Vader and observed that:
At issue in all of these cases is whether a licensee can be properly found to have engaged in professional misconduct where the failure to fulfil professional obligations is caused by mental illness. Though framed in different ways, all these cases recognize that it cannot be professional misconduct to fail to do what one cannot do because of physical or mental illness. Interpreting the Rules of Professional Conduct and the meaning of “professional misconduct” as used in s 33 of the Law Society Act in this way is consistent with the professional regulatory purposes of the Law Society Act and with the obligations imposed by the Human Rights Code, RSO 1990, c. H.19 ....
- Law Society of Ontario v Khan, 2018 ONLSTH 131 and 2020 ONLSTA 18
Khan involved more serious misconduct than failure to co-operate. The hearing panel found that, applying either the Vader line of cases (the traditional approach) or human rights principles, disability did not provide a defence because there was no causal connection between the disability and the misconduct.
The appeal panel accepted generally that “This Tribunal’s jurisprudence has established that it is a defence to professional misconduct if the licensee is not able to comply with the Rules of Professional Conduct because of physical or mental illness.” It found no error in the conclusion of the hearing panel to revoke the Lawyer’s licence given the finding that “there was no causal relationship between the disability and the professional misconduct”.
- Law Society of Ontario v Stewart, 2019 ONLSTH 118 (Stewart #1) and 2023 ONLSTH 153 (Stewart #2)
Stewart #1 was also a case involving more serious misconduct. Mr. Stewart’s misconduct was the result of mental illness and substance use.
The parties agreed that the case should proceed as a capacity application, rather than a conduct application, with careful restrictions being ordered. The hearing panel stated at para 44:
The logical outcome of the jurisprudence regarding conduct where disability is a causal factor is the diversion, in appropriate cases, to a rehabilitative, forward-looking approach using the Law Society’s process for regulation of incapacity.
Unfortunately, Mr. Stewart did not comply with the restrictions that were imposed. A further conduct application followed. As the conduct hearing panel stated in Stewart #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. He acted without integrity and failed to comply with the Rules of Professional Conduct and the By-Laws. We are convinced he is ungovernable.
Mr. Stewart did not attend the second hearing. There was no evidence that his conduct subsequent to 2019 was the result of mental illness and substance use. The panel did not consider whether Mr. Stewart had a “capacity defence” to the allegations of misconduct.
- Law Society of Ontario v Phillips, 2022 ONLSTH 2
In Phillips, the hearing panel found incapacity at a time that Mr. Phillips had engaged in egregious conduct. The hearing panel found that the cause of Mr. Phillips’ delusional and bizarre behaviour was a psychosis. Having made a carefully negotiated capacity order, the panel dismissed the conduct application on the basis that the misconduct was the result of mental illness. The panel observed at para 38:
Our jurisprudence is clear that it simply cannot be misconduct where the licensee’s behaviour is explained by a physical or mental illness. In these circumstances, the Tribunal must interpret and apply the Law Society Act in accordance with the regulator’s and the Tribunal’s obligations that are imposed by the Human Rights Code. In short, the duty to accommodate to the point of undue hardship requires an assessment of whether the requested disposition would undermine the public’s confidence in the integrity of the legal professions, and the Law Society’s ability to effectively regulate the professions in the public interest.
- Law Society of Ontario v Harris, 2022 ONLSTH 4
In Harris, the hearing panel agreed “with the Law Society that there should be one approach to addressing the mental health of a member when it is raised as a defence at the findings hearing of a conduct application” and that “conducting both a ‘human rights’ analysis and the ‘traditional approach’ is unnecessary and confusing”.
However, the panel declined to articulate a reconciled approach because it did not find that the lawyer “was not able to comply with his professional obligations because of his mental illness”.
- Law Society of Ontario v Luizos, 2022 ONLSTH 16 and 2023 ONLSTH 24
Mr. Luizos repeatedly failed to respond to investigative inquiries. Indeed, there were a total of six failures to co-operate applications against Mr. Luizos over the years. While Mr. Luizos was found to have mental health problems, he was not found to be unable to respond to investigative inquiries and accordingly misconduct was found. Mr. Luizos’ licence was revoked in the sixth conduct application.
- Law Society of Ontario v Kerr, 2022 ONLSTH 44
In Kerr, the hearing panel found that Mr. Kerr was able to comply with his professional obligations despite mental health issues. As a result, the panel found misconduct as alleged.
- Law Society of Ontario v McLennan, 2024 ONLSTA 10
In McLennan, an appeal panel reaffirmed that “Our jurisprudence establishes that it is a defence to professional misconduct if the licensee is unable to comply with their obligations because of physical or mental illness. However, the onus is on the licensee to establish, on a balance of probabilities, that the disability precludes compliance.“
The appeal panel further observed that:
… we agree that the accommodation sought by the appellant – an indefinite deferral of the investigation – would have amounted to undue hardship given the delays caused by his failure to co-operate and the Law Society’s statutory duties to protect the public interest and act in a timely and effective manner.
The Law Society Act
82The traditional approach suggests that the meaning of professional misconduct may exclude situations where a licensee is unable to conduct themselves properly. Another way of understanding the cases to date would be that panels have the discretion not to make a finding of professional misconduct in those situations. On the basis of the following interpretation, we conclude the latter is the correct approach.
83Section 33 of the Law Society Act provides that “A licensee shall not engage in professional misconduct or conduct unbecoming a licensee.”
84The terms “professional misconduct” and “conduct unbecoming” are not defined in the Act. However, these terms are defined in the Rules of Professional Conduct:
“professional misconduct” is generally defined as “conduct in a lawyer's professional capacity that tends to bring discredit upon the legal profession”
“conduct unbecoming” is generally defined as “conduct, including conduct in a lawyer's personal or private capacity, that tends to bring discredit upon the legal profession”
Some specific conduct is included in these definitions. For example, violation of one of the Rules of Professional Conduct is defined to be professional misconduct, as is misappropriation.
85While definitions in the Rules should be given great weight, the Law Society is not specifically authorized by the Act to define the terms “professional misconduct” and “conduct unbecoming”.
86The use of the undefined terms “professional misconduct” and “conduct unbecoming” in the Act is similar to the use of the undefined term “good character” as a licensing requirement. The Court of Appeal considered the term “good character” recently in Law Society of Ontario v AA, 2026 ONCA 47. In paras 50-51, Sossin JA wrote for the court:
50The text of the Act in general, and s. 27 in particular, must be the “anchor” of the Tribunal’s analysis: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, at para. 24, citing Mark Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022) 59 Alta. L. Rev. 919, at p. 927. Close attention must be paid to the text because it “specifies, among other things, the means chosen by the legislature to achieve its purposes”: CISSS A, at para. 24.
51As is clear from the outline of the legislative framework set out above, the text of s. 27 is broad and open-ended. While s. 4.2 signals a “public interest” approach to licensure, there are no statutorily prescribed factors in the Act, nor defined terms in By-Law 4, that serve to constrain or even guide the Tribunal’s good character assessment pursuant to s. 27, nor is the concept of the public interest in s. 4.2 a defined term under the Act.
87Following AA, we observe that the term “professional misconduct” clearly addresses improper conduct as a professional but does specify what conduct should be considered misconduct.
88Section 4.1(a) of the Act is of some assistance. It defines one of the Law Society’s core functions as ensuring that:
all persons who practise law in Ontario or provide legal services in Ontario meet standards … of professional conduct that are appropriate for the legal services they provide.
89That licensees should meet standards of professional conduct that are appropriate for the legal services they provide is unsurprising but this helps clarify that proper professional conduct is related to the provision of legal services. Focus on the professional conduct required to properly provide legal services is appropriate, i.e. a somewhat focused utilitarian exercise.
90Section 4.2 of the Act requires the Law Society to have regard to certain principles, including that:
The Society has a duty to maintain and advance the cause of justice and the rule of law.
The Society has a duty to protect the public interest.
91Section 4.2 is useful in ascertaining the purpose of the Act and the reason for regulating the provision of legal services. Section 4.2 helps put s 4.1(a) in broader context. There are significant reasons why proper provision of legal services is important.
92Section 49.27(2) is also of assistance. This section addresses the authority of the Tribunal to order interlocutory suspensions and restrictions. The Tribunal may not do so 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”.
93The references to “the cause of justice and the rule of law” and to the “public interest in the administration of justice” are significant. It is very important to a free, democratic, and prosperous society that people are able to operate within an effective legal system and to resolve disputes within a fair and effective justice system. As well as effective dispute resolution, public confidence in the legal system and the administration of justice is important.
94Because the “law is a complex web of interests, relationships and rules” , people need expert legal assistance: R. v McClure, 2001 SCC 14 at para 2. While it might be better if people did not need expert legal assistance, they do. The centrality of a legal professional’s duty of loyalty to legal ethics reflects the importance of the representation role of legal professionals. Client rights and interests require proper legal representation.
95At the same time, proper operation of the legal system and the administration of justice require that participants conduct themselves within appropriate norms. Otherwise, effectiveness and public confidence will be compromised. The centrality of a legal professional’s duties to the court and to law reflect the importance of legal professionals to the legal system. Proper professional conduct is required in support of the legal system and the administration of justice as well in support of client rights and interests.
96The definition of “professional misconduct” in the Rules of Professional Conduct is consistent with all of this, but in a somewhat indirect way. Conduct that “tends to bring discredit upon the legal profession” is inconsistent with maintaining and advancing the cause of justice, the rule of law, and the administration of justice. Conduct that “tends to bring discredit upon the legal profession” is conduct that corrodes public confidence in the legal profession and thereby corrodes public confidence in the legal system and the administration of justice.
97During submissions, counsel for the Law Society submitted that professional misconduct was conduct which was a marked departure from proper conduct. This definition is used in some other Canadian jurisdictions. But this definition begs the question. It does not help understand what conduct is proper.
98Given the roles of lawyers and paralegals and their regulation under the Act, we consider that the meaning of professional misconduct must reflect a breach of the conduct that is required of licensees to advance the specific and general purposes described above. This includes proper client representation and the proper operation of the legal system and the administration of justice. This also includes public confidence in the legal system and the administration of justice and, for that purpose, public confidence the legal professions and their regulation. Professional misconduct is conduct as a licensee which compromises, rather than maintains, these important purposes.
99As to conduct unbecoming, licensees have limited regulatory obligations in their personal/private lives. But what they do outside of their professional work may compromise their professional roles and responsibilities and may compromise the legal system that they serve. As a result, the Act prohibits engaging in conduct unbecoming as well as professional misconduct.
100An important point of this analysis for current purposes is to explain why professional misconduct under the Act is a very different thing than criminal conduct under the Criminal Code. Criminal Code prohibitions are for very different purposes than the conduct prohibitions under the Act. And the consequences of criminal convictions are very different than the consequences of findings of professional misconduct.
101In criminal law, rights and liberty can be forfeited for criminal misconduct. Moral blameworthiness is ordinarily required for a criminal penalty to be imposed. In legal services regulation, a privilege can be forfeited for misconduct. Moral blameworthiness is not necessarily required for a finding of professional misconduct: Law Society of Ontario v McCallum, 2024 ONLSTH 29 at paras 153-177.
102We conclude that the Law Society Act does not require that conduct resulting from disability not be treated as professional misconduct.
Consideration of Tribunal jurisprudence
103The earlier cases in which mental illness was found to be a defence to an allegation of professional misconduct, Vader and Luzius, were failure to co-operate cases. As said in Law Society of Upper Canada v Ghobrial, 2014 ONLSHP 5 at para 13, at issue in a failure to co-operate application is whether “the licensee failed to act in good faith to respond (i) promptly and (ii) completely, given all the circumstances”. As the test for failure to co-operate permits consideration of “all of the circumstances”, it is not difficult to accept that the circumstances could include illness.
104More significantly, these cases addressed past misconduct that was the result of mental illness. There was no suggestion in these cases that these licensees would never have to respond to investigative inquiries nor a determination of what should be done if they could not comply in the foreseeable future. An unstated premise appears to have been that the mental illness was either in remission or capable of being addressed.
105In Stewart #1 and Phillips, subsequent panels considered more serious misconduct that resulted from mental illness. In Stewart #1, the licensee had “recognized that his mental illness and substance use had played a significant role in his behaviour. He sought out diagnosis and received treatment.” The parties relied on a lengthy medical opinion and had “negotiated an extremely detailed protocol to govern the Lawyer’s return to practice.”
106After considering the prior jurisprudence and noting that cases involving more serious misconduct raise more difficult issues, the Stewart #1 panel observed at para 44 that:
The logical outcome of the jurisprudence regarding conduct where disability is a causal factor is the diversion, in appropriate cases, to a rehabilitative, forward-looking approach using the Law Society’s process for regulation of incapacity.
107As stated in paras 73-74, the evidence in Stewart #1 was that:
Dr. Colleton found that the respondent entered early remission for his substance use disorders in December of 2018. The respondent is still in early remission for his substance abuse disorders, and he has been responsive to and working to implement Dr. Colleton’s treatment plan.
The prognosis is “guarded but fair” for the personality disorder, but for the substance use disorders, Dr. Colleton opined that the “risk of relapse is higher than it might be for another individual .... Even with comprehensive treatment, the prognosis must be guarded.”
108The Stewart #1 panel accepted the submission of the parties that the conduct application should be diverted to a capacity application.
109Unfortunately, the rehabilitative approach taken in Stewart #1 was not successful. Mr. Stewart’s licence was revoked for serious misconduct in Stewart #2. Given the evidence and the positions of the parties, the panel did not have to address the question of whether Mr. Stewart had a medical defence to allegations of misconduct despite the lack of success of the rehabilitative approach previously taken.
110In Phillips, the panel accepted a joint submission that Mr. Phillips had been incapacitated, during a period in which he had engaged in seriously problematic misconduct, and “ordered that he be permitted to return to practice based on the agreed treatment, monitoring and employment conditions …”.
111With this order having been made, the panel went on to dismiss the allegations of professional misconduct in respect of Mr. Phillips’ conduct while he was in a psychotic state.
112On this analysis, we conclude that the Tribunal’s jurisprudence to date has:
found medical defences to allegations of professional misconduct where the misconduct has been at the lower end of severity;
not yet found medical defences to allegations of professional misconduct where it was likely that the misconduct would continue;
used diversion to the “capacity stream” to establish consensual rehabilitative schemes designed to return licensees to practice safely and properly; and
not yet addressed diversion from the “conduct stream” to the “capacity stream” where there is not a reasonable prospect of rehabilitation and return to safe and proper practice.
113Neither the Law Society nor the Friend contended that we should interpret the term “professional misconduct” such that capacity to act properly is required. Said another way, neither suggested that “professional misconduct” could not be conduct caused by mental illness. We agree.
114As discussed above, the purpose of regulating professional conduct under the Law Society Act is to better ensure that licensees conduct themselves so as to advance and maintain the cause of justice, the rule of law, the administration of justice and, for those purposes, to maintain confidence in the legal professions and its regulation.
115While this purpose is advanced by treating mental illness as a defence in many cases, mental illness cannot result in effectively unregulated conduct. Where mental illness is ended or is in remission or can be addressed by rehabilitative capacity orders, treating mental illness as a defence in a conduct application can advance the purposes of regulation of the professional conduct of lawyers and paralegals.
116Accordingly, we conclude that mental illness is not invariably a defence to an allegation of professional misconduct but that it can be accepted as a defence taking into account the important personal rights and interests of licensees, the values of rehabilitation and respect for human dignity together with the need for effective conduct regulation of legal services in the public interest.
THE PROPOSED FRAMEWORK
117The Law Society proposes that a new analytic framework be adopted so that panels need not undertake both the traditional analysis and a human rights analysis. The Friend agrees. This was accepted as a laudatory goal in Harris and we agree.
118That said, we recognize that the Law Society and the Tribunal are both bound to apply the Human Rights Code and the Charter of Rights and Freedoms: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. Any new framework must comply with human rights law. Whatever the framework, there may be a future case in which application of the framework would not comply with human rights law.
119In its written submissions, the Law Society suggests the following unified framework:
Once a licensee establishes that their misconduct is connected to a mental disorder, the question turns to accommodation.
The Law Society Act and the Rules of Practice and Procedure outline a specific regime for accommodating licences with mental disorders. The matter can be diverted to the capacity stream in the investigations stage or at the hearing stage with the consent of the parties.
In cases where there is a strong, causal connection between the misconduct and the disability, this diversion will almost always be appropriate as it strikes a fair balance between protection of the public and respect for human rights.
Diversion to the capacity stream, however, requires some level of co‑operation from the licensee. At best, the licensee is fully engaged and works with the Law Society to chart a path back to responsible practice. At minimum, the licensee must respect and abide by the conditions imposed as part of the process. Where the minimum level of co-operation is not achieved, the public is at significant risk, and no accommodation can be provided.
120This suggested approach is similar to the Law Society’s suggested approach in Harris. The main difference is that the Law Society in Harris did not seek to constrain diversion as it does here. In Harris, the Law Society submitted that, where the licensee had shown that they were unable to meet the professional obligations as a result of their disability:
…the Tribunal must inquire whether diversion to a capacity inquiry is appropriate in the circumstances.
i. If the parties consent, diversion may be achieved in the ongoing proceeding by operation of Rule 14.3.
ii. If the parties do not consent, the party seeking diversion must satisfy the Tribunal that it would not be appropriate to treat actions which would otherwise constitute professional misconduct as wrongdoing. If diversion is appropriate, the appropriate remedy is a stay of the s 33 proceeding so that the Law Society may commence proceedings under s 37.
121There are apparent difficulties with the Law Society’s currently suggested approach, some more serious and some less serious.
122The first is the proposition that it is invariably for the licensee to establish that their misconduct is connected to a mental illness. As this case demonstrates, mental illness can interfere with a person’s ability to recognize disability and to show that a disability is connected to impugned conduct. The salient issue is not how, and by whom, a connection between a mental disorder and misconduct is shown, but rather whether the panel concludes that the required connection exists. As well, and as this case also demonstrates, the Law Society and the Tribunal can play a role in addressing the question of connection. In this case, a Friend of the Tribunal was appointed and the retainer of Dr. Klassen was ordered because, as a result of his mental illness, SW does not accept that he has a mental illness.
123The second is the implication that diversion to the capacity stream is the only way to accommodate disability. We do not accept that this is so, nor that the capacity stream is established under the Law Society Act for that purpose. Capacity applications under the Act are for the purpose of determining whether a licensee is incapacitated, as defined, and to permit appropriate orders in the event of past or current incapacity. Capacity orders can be rehabilitative in nature but are not necessarily rehabilitative. Capacity orders can, but need not, arise from problematic conduct.
124Further, whether a capacity application is brought, or not, is for the Law Society to decide under the Act. Neither the Tribunal nor the licensee can divert to the capacity stream if the Law Society does not agree. In effect, using diversion to the capacity stream as the only means of accommodation would result in substantial delegation of the Tribunal’s human rights obligations to the Law Society.
125As a practical example, it seems excessive to have to divert to the capacity stream to address a failure to co-operate that was caused by a fully resolved episode of mental illness. It may be that the practical and fully sufficient response could be to dismiss the conduct application.
126As to co-operation, it is of course preferable that the licensee co-operate. Rehabilitation through the capacity stream is obviously enhanced by, and may depend on, licensee co-operation. But whether a licensee will respect and abide by the conditions imposed as part of the process is not always clear.
127For example, the panel in SW’s prior capacity application ordered a suspension rather than revocation because it was unable to conclude that there was no prospect of recovery. That panel found that the public interest would be protected by an immediate and indefinite suspension: Law Society of Ontario v Bogue, 2020 ONLSTH 21 at paras 21-22. In retrospect, this may not have been correct. But requiring a finding of co-operation as a necessary precondition of accommodation, where illness impairs the ability to co-operate, may be unduly limiting. The human rights principles that apply in respect of accommodation in the employment context are not necessarily applicable in the professional regulation context.
ADOPTED APPROACH
128Having considered the proposed approach in Harris, the proposed approach by the Law Society in this case, and the submissions of the Law Society and the Friend, we adopt the following unified approach:
First, the panel must determine whether, ordinarily based on expert evidence, the licensee was a person with a disability at the material time. If not, that is the end of the inquiry.
Second, the panel must determine, ordinarily based on expert evidence, whether the licensee was unable to meet their professional obligations as a result of their disability. If not, the disability is relevant to penalty only.
Third, the panel must determine whether diversion to a capacity proceeding is appropriate in the circumstances. The appropriateness of diversion takes into account, among other relevant matters, (i) the prospects for treatment and/or rehabilitation, (ii) the apparent desirability and prospect of a capacity order, (iii) the likelihood of future compliance and co-operation with professional obligations, including Tribunal orders, and (iv) risk to members of the public, the public interest in the administration of justice, and public confidence in the legal professions and their regulation (collectively regulatory risk),:
i. If the parties consent, diversion may be achieved in the ongoing proceeding by operation of Rule 14.3.
ii. If the parties do not consent, and diversion is found to be appropriate, the appropriate order will ordinarily be a stay of the s 33 proceeding so that the Law Society may commence proceedings under s 37 if it chooses to do so.
- Fourth, if diversion to a capacity application is not ordered, the panel must determine whether a dismissal or a stay should be ordered taking into account (i) the likelihood of future misconduct and (ii) regulatory risk.
129Where misconduct results from disability, this approach permits, but does not require, a determination other than a finding of professional misconduct. This approach permits, but does not require, diversion to the capacity stream where misconduct results from disability. Where there is a finding of misconduct and there is a connection between the misconduct and disability, the disability and its connection to the proven misconduct may be considered at the penalty stage as may be appropriate.
130In our view, this approach is consistent both with the objectives of legal services regulation and human rights law and provides discretion to ensure that appropriate decisions are made in individual cases.
131Where proven conduct is the result of disability, this approach contemplates reasonable accommodation by way of diversion to a capacity application, a dismissal or a stay. Where professional misconduct is found, disability can be a mitigating factor in the fashioning of an appropriate penalty. This too permits reasonable accommodation.
132Deciding how to reasonably accommodate takes into account the human rights of the licensee, regulatory objectives and regulatory risk. Deciding whether the point of undue hardship has been reached focuses on regulatory objectives and regulatory risk. This is the application of human rights principles in the context of professional regulation in the public interest.
APPLICATION TO THIS CASE
133SW has been found to be incapacitated. He remains subject to the capacity order made in 2020. Dr. Klassen opined in the capacity application that SW has a mental illness. Considering Dr. Klassen’s current opinion and SW’s ongoing conduct, it is clear that SW continues to have a mental illness. We find that SW now has a disability.
134SW’s impugned conduct is obviously the result of the mental illness that led to the finding of incapacity and the capacity order. Dr. Klassen has opined, and the Law Society accepts, that the impugned conduct is the result of SW’s delusions. We find that SW has been unable to comply with his professional obligations because of his mental illness.
135To this point, the Law Society and the Friend are in agreement. Of course, SW does not agree that he has a mental illness.
136The Law Society’s position is that this matter should not be diverted to the capacity stream. The Friend’s position is that diversion is required. Of course, we cannot require the Law Society to commence a capacity application. But it remains to be seen what the Law Society would do if this application were to be stayed.
137We conclude that it would be inappropriate to divert this matter to the capacity stream because:
There has already been a capacity application and a capacity order with which SW has not complied.
There is no reasonable prospect of SW co-operating in a rehabilitative process that is premised on him having insight into a mental illness that he resolutely denies.
There is no reasonable prospect of SW complying with capacity orders with which he takes issue, including the current suspension order. By reason of mental illness, SW is unwilling to be subject to regulation under the Law Society Act.
Members of the public and the public interest in the administration of justice are put at significant risk by the impugned conduct. Those represented by SW in criminal and other matters have been badly served and may well not recognize that SW’s positions are nonsensical. SW wastes valuable court time and subjects the judiciary and counsel to abuse.
There is no apparent point to diversion, assuming that a further capacity application is available at law given the existing capacity order.
138The Friend submits that, even if the result of diversion is licence revocation, diversion is preferable because of the unnecessary stigma of a finding of professional misconduct and the potential impact of a finding of professional misconduct in the event of a future application for relicensing.
139We place little weight on these matters. If a finding of professional misconduct is made (rather than a capacity order), it should be obvious now and in the future that SW’s conduct was the result of mental illness. In the event that SW’s mental illness is resolved, by remission, treatment or otherwise, we have no doubt that the Law Society and the Tribunal will recognize and understand the basis for a finding of professional misconduct.
140Having concluded that this matter should not be diverted to the capacity stream, we now consider whether we should stay or dismiss this application.
141For much the same reasons that we do not consider diversion to be appropriate, we conclude that this application should not be stayed or dismissed.
142SW’s licence was suspended because of his incapacity arising from mental illness. It is clear that the same mental illness and same inability to comply with professional obligations is the root cause of his misconduct.
143Because of his delusionary beliefs as to the law, he has abused the judiciary, and other justice system participants, and he has harmed the administration of justice, the clients that he has served, and other members of the public.
144Because SW has a delusionary belief that he is not subject to regulation by the Law Society or the authority of the Tribunal, he has breached the suspension order. Staying or dismissing this application would simply leave the capacity suspension order in place without reason to believe that SW would comply with it.
145Leaving the current situation unaddressed is not an appropriate alternative. While it may be that SW will continue to act as he has done whether licensed or not, it is important to make clear to all concerned that his actions are not as a licensee.
146We have no basis on which to conclude that SW will comply with his obligations as a licensee in the future. We are confident that his non-compliance will cause harm. We cannot responsibly stay or dismiss this application. We will not do so.
THE CONDUCT ORDER TO BE MADE
147Having found professional misconduct and that, by reason of mental illness, SW is unwilling to be subject to regulation, this leaves the question of what conduct order should be made. It appears to follow from our reasons above that SW’s licence should be revoked or surrendered.
148However, we think it proper before finally deciding on the appropriate conduct order to invite SW to file any relevant evidence and written submissions that he may wish to file on this issue. He may do so on or before May 25, 2026.