LAW SOCIETY TRIBUNAL

HEARING DIVISION

Date: May 21, 2026 Tribunal File No.: 23H-053

BETWEEN:

Law Society of Ontario Applicant

• and -

Richard Adedayo Odeleye Respondent

Before: Paul Le Vay (chair), Stephen Rotstein, François Turpin Heard: March 19-21 and May 7, 2025, by videoconference

Appearances: Tomilayo Ojuile, for the applicant Gabriel Gross-Stein, for the respondent

Summary: ODELEYE – Failure to Serve – Sexual Harassment – The Law Society alleged that the Lawyer failed to serve his client to the standard of a competent lawyer, failed to advise his client of the option to apply for Legal Aid, failed to act with honor and integrity by engaging in sexual harassment of the client and misled the Law Society – The Lawyer denied the allegations – The panel found that the Lawyer engaged in professional misconduct by failing to meet the standard of competence and this failure rose to the level of bringing discredit to the profession – the panel found that he failed to make convenient and efficient legal services available by failing to advise of the option of Legal Aid – the panel also found that the Law Society did not meet its onus of proof with respect to the allegation of sexual harassment – The panel concluded that he did not meet his obligation of truth and candor to the Law Society – A hearing on penalty is to be scheduled.

REASONS FOR DECISION ON FINDINGS

1Paul Le Vay (for the panel):– This is an application brought by the Law Society of Ontario (LSO) alleging that the respondent Richard Adedayo Odeleye (the Lawyer) engaged in professional misconduct by:

• Failing to apply the required knowledge and skill to the immigration matter on which he was retained by his client SS and by failing to provide her with an adequate quality of service, thereby failing to serve her to the standard of a competent lawyer, contrary to Rules 3.1-2, 3.2-1 and 3.2-2 of the Rules of Professional Conduct (the "Rules").

• While being aware of her vulnerabilities, failing to advise SS of the option to apply for a Legal Aid Certificate for the payment of the appeal of her refugee claim and her application for leave and judicial review to the Federal Court, thus failing to make efficient and convenient legal services available to SS and taking advantage of her vulnerabilities for his economic gain and convenience, contrary to Rules 4.1-1 and 4.1-2 of the Rules.

• Making inappropriate comments about SS's physical features and making other sexually suggestive comments to her, thus failing to act with honour and integrity by engaging in sexual harassment, contrary to Rules 2.1-1 and 6.3-3 of the Rules.

• Failing to be honest in his written representations to the LSO and during a virtual interview with a LSO investigator, thus misleading the LSO contrary to Rule 2.1-1 of the Rules.

2The Lawyer denied the allegations. Evidence was presented and heard March 19-21, 2025, with closing arguments heard May 7, 2025.

3For the reasons that follow, we find that:

a. The Lawyer failed to apply the required degree of knowledge and skill, and failed to provide his client SS with an adequate quality of service in respect of the issue of internal flight alternative (IFA) and the documents relating to an alleged poisoning incident in relation to SS' refugee claim, contrary to Rules 3.1-2, 3.2-1 and 3.2-2;

b. The Lawyer failed to advise SS of the option to apply for a Legal Aid Certificate for the payment of her appeal of her refugee claim and her application for leave and judicial review to the Federal Court thus failing to make efficient and convenient legal services available to SS contrary to Rules 4.1-1 and 4.1-2; and

c. The Lawyer failed to be honest in his representations to the LSO investigator on the issue of whether SS had already applied for a Legal Aid Certificate prior to her first attendance at his office, contrary to Rule 2.1-1.

4For the reasons outlined below, we dismiss the allegation that the Lawyer engaged in sexual harassment of SS.

BACKGROUND

5The allegations arose in the context of SS retaining the Lawyer to advise and represent her with respect to immigration matters. The Lawyer filed a refugee claim on her behalf. When it was rejected, he filed an application for leave to appeal to the Federal Court. SS subsequently terminated the retainer and filed a complaint with the LSO, which ultimately led to this proceeding.

6The Lawyer was born in Nigeria and qualified as a lawyer and practiced there until he came to Canada in 2000. He completed the process required by the National Committee on Accreditation and the Law Society's licensing process and was called to the Ontario bar in 2004. Since 2013 he has been a sole practitioner, concentrating primarily on immigration and refugee law.

7SS is Tanzanian. She married in her country in 2004 and has two sons. She testified that her husband beat her. She divorced in 2015. She testified that she continued to have difficulties with her husband and had to move with her children to another city, but that her husband found her.

8She came to Canada in March 2017 on a visitor's visa at the invitation of an acquaintance who she had met on an earlier trip to the United States. He offered to buy her a ticket and have her come to his house in Toronto. Her intention was to establish herself in Canada and then bring her children here. She described tensions with her host, including demands that she sleep in his room and his impeding her from calling home to speak to her children.

9SS testified that she sought assistance from an old school friend now living in Toronto, who encouraged her to leave the situation she was in and suggested that she seek refugee status. SS left the living situation she was in and at her friend's urging sought legal advice. On April 18, 2017, SS and her friend were on Finch Avenue. They asked a passerby who was from Nigeria if she knew of any lawyers and she told them there was a lawyer in a nearby building. This turned out to be Mr. Odeleye's office. SS testified that they attended and sought assistance.

10SS met with Mr. Odeleye and advised briefly of her situation. He told her that she needed to apply for a Legal Aid Certificate and referred her to his wife, who worked in an administrative capacity in the firm, to assist her with respect to that. She was issued a Legal Aid Certificate for her refugee claim.

11Mr. Odeleye also told her to write out the story of why she was in Canada, which would be used to apply for refugee status. SS prepared a Draft Narrative setting out certain basic aspects of her story. This was submitted by SS to the Lawyer's office a few days later. It was then fleshed out and significantly improved with the assistance of the Lawyer's office into a document styled My Narrative, which was ultimately included with SS' Basis of Claim Form (for persons claiming refugee protection in Canada) (BOC) which was filed with the Immigration and Refugee Board (IRB) by Mr. Odeleye on her behalf on April 28, 2017. The basis for the claim was the domestic abuse inflicted by her husband.

12The Narrative contained a passage in which SS recounts a meeting in Dar es Salaam in May 2016 with her brother-in-law where she recounts that he poisoned her at the behest of her husband, and she became ill and required hospitalization. SS recounted receiving medical records from Tanzania to buttress this story, which she provided to Mr. Odeleye to submit to the IRB. The documents were inconsistent and contradictory on their face. Mr. Odeleye's evidence was that he pointed this out to SS, who insisted nonetheless that the documents be submitted. He then had her sign an acknowledgement that they should nonetheless be disclosed to the IRB.

13The hearing before the IRB was originally scheduled in 2017 but was adjourned and ultimately heard on May 8, 2018. On May 22, 2018 the Panel issued its Reasons and Decision rejecting SS' refugee claim. The reason for the rejection was that she had not established that her return to Tanzania would subject her to a risk because there was a viable internal flight alternative (IFA) for her within Tanzania. The Panel also found that she had not established that her husband or his relative found and poisoned her because she had submitted non-genuine documents to support this allegation. In making this finding the Panel extensively referenced the inconsistencies in the medical reports provided.

14SS then retained Mr. Odeleye to pursue an appeal to the Refugee Appeal Division (RAD). No Legal Aid certificate was obtained for the appeal. SS' evidence at the hearing was that the Lawyer told her that there was no government funding available for the appeal but that he would act privately for a fee of $3,000. The Lawyer's evidence was that he told her that he did not accept LAO certificates for appeals. In any event, SS agreed to the private retainer and paid in installments. Further particulars of the evidence about this retainer are set out in our analysis of the second allegation, below.

15The RAD dismissed SS' appeal on September 21, 2020. The appeal focused on the Refugee Protection Division (RPD)'s assessment and analysis of IFA. The RAD upheld the analysis in the decision below finding that SS' evidence about the unavailability of IFA to be weak and speculative. It upheld the RPD's finding that SS' credibility had been undermined through her presentation of non-genuine medical documents.

16Following the RAD decision, SS retained Mr. Odeleye to bring an application for leave for judicial review in the Federal Court. As with the appeal, no Legal Aid certificate was obtained for the Federal Court proceeding. SS agreed to pay a further $3,000, again in installments. Mr. Odeleye prepared and filed the Federal Court leave application. The Department of Justice then responded. Mr. Odeleye requested the balance of the fees from SS and indicated that he would file a reply submission, but he did not do so.

17On October 29, 2021, the Federal Court issued a production order on SS' application. A production order indicates that a judge believes that the application raises an arguable case and intends to grant leave to seek judicial review. Shortly thereafter, on November 8, 2021, Mr. Odeleye informed SS of the production order and that it meant the Court was inclined to grant leave. He advised her that he would require an additional fee of $5,000 to prepare and attend the judicial review hearing. In the same communication, Mr. Odeleye acknowledged SS's prior payments of $6,000 covering the initial appeal and leave application, and requested immediate payment of $5,000 to proceed.

18SS testified that some time in and around May 2021 she received a document, which she did not identify, from Immigration. She took an Uber to make a copy of the document. She recounted that the Uber driver, who was of African origin, noticed the envelope from Immigration and spoke to her about it. She told him that she was a refugee claimant and that her lawyer was Mr. Odeleye. She recounted that, on hearing Mr. Odeleye's name, the driver indicated concern and asked her if she had received any communication from Immigration about withdrawing the case from Mr. Odeleye. This prompted her to seek out another immigration lawyer. She contacted the office of Mitchell Goldberg, an experienced immigration lawyer in Montreal and spoke to his assistant. She recounted that the assistant asked for her court file number, so she called Mr. Odeleye to obtain it. Mr. Goldberg's assistant was then unable to verify information in the Court file. Mr. Goldberg's office referred her to FCJ Refugee Centre in Toronto. She was then referred to Emmanuel Galang, a lawyer in Brampton, Ontario.

19She consulted with Mr. Galang, who offered to help her pro bono. Mr. Galang advised her that she should not have filed a refugee claim because fears of domestic abuse could not constitute grounds for such a claim. He told her that she should have made an application for permanent residence on humanitarian and compassionate grounds. He advised her to discontinue her Federal Court litigation and filed a notice of discontinuance in her name. He assisted her in writing to the Canada Border Service Agency (CBSA) advising it that she had filed a refugee claim that she should not have filed because she had been taken advantage of by Mr. Odeleye, and requesting that the CBSA withhold enforcing a removal order against her while the LSO complaint was pending.

20Mr. Galang also assisted her to write a complaint to the LSO, which she did on October 30, 2021. In addition to complaining about his handling of her refugee claim and his billing practices, she also alleged that Mr. Odeleye had touched her inappropriately.

CREDIBILITY

21The credibility of the two major fact witnesses in this proceeding, SS and Mr. Odeleye, was engaged with respect to a number of issues in the evidence. We have therefore carefully considered their credibility, having regard to its consistency, both internally and with documents and other evidence, ability and opportunity to recall and strength of memory, plausibility in the sense of according with common sense or probability, and motive to fabricate out of personal interest. We were cautious in considering demeanour as both witnesses had an understandable reason to feel apprehensive in appearing to give evidence.

22Raoul Boulakia, in his expert opinion discussed below, described SS as a vulnerable claimant in the refugee process. We agree. She fled her homeland of Tanzania fearing domestic violence. While sufficiently fluent in English to give evidence in that language without an interpreter, it was clearly a second language for her and she was nervous. It was apparent to us that language issues caused her on occasion to misunderstand the nature of a question.

23It was also clear from her evidence that SS believes that Mr. Odeleye has done great disservice to her in many respects. One of the ways that this manifested itself in her evidence was her denial that he or his staff had done anything at all to advance her case. She was required to retreat from certain of those positions in cross-examination when confronted with evidence to the contrary. We did not view this as a deliberate attempt to mislead us. As we have said, SS is unsophisticated when it comes to issues like understanding the legal process of a refugee claim and her view that Mr. Odeleye had not helped her seemed genuinely held, even if it was at times inconsistent with other evidence.

24Given this, certain inconsistencies in her evidence, and the implausibility of other aspects of it, did raise questions about the reliability of her evidence. The following are two examples:

• In her examination-in-chief, SS testified that she was given a basic instruction by the Lawyer to write her story. She went to the library and did that, bringing it in three or four days later to give it to the Lawyer's licensed paralegal Iyabo Ojo. She then said that Iyabo told her the narrative was insufficient but that Iyabo offered to rewrite her story for $200. She claimed that Iyabo did so. When asked by LSO counsel whether Iyabo asked her any questions during the rewrite, she said no. She also said that Mr. Odeleye did not participate, nor did he review the updated narrative with her. In cross-examination, SS conceded that a number of facts that had been added to the re-written narrative were true, including many details related to her personal situation in Tanzania. Notwithstanding this, initially SS strenuously resisted the suggestion put to her in cross-examination that she had provided this information to either Iyabo or Mr. Odeleye. This was not credible as there was no other source for the information. Eventually, she conceded that she had provided the information to Iyabo. The information which was added to the narrative was material and improved on the first draft, including addressing issues that were relevant to her claim, like IFA. Her evidence that this did not happen through interaction with Mr. Odeleye or his staff was not credible. This caused us to treat her evidence about Mr. Odeleye's efforts on her behalf with caution.

• In her examination in chief about her interaction with the Uber driver, she did not mention that the driver had told her that Mr. Odeleye had a lot of scandals. In cross-examination, she reluctantly conceded that she had said this in her initial interview with the LSO investigator when it was shown to her in the transcript of her interview. It was then put to her that she had googled Mr. Odeleye's name and discovered that he had, in the past, been charged with sexual assault. She attempted to evade the question before finally acknowledging that she had done so and had read about the prior criminal charges. Despite the fact that she had made a complaint to the LSO about Mr. Odeleye engaging in inappropriate touching, she reluctantly acknowledged, when pressed, that she had not told the investigator about the fact that Mr. Odeleye had previously been charged with sexual assault. Counsel for the Lawyer argues that if she were telling the truth, she would have readily disclosed that she had discovered the previous charges and that the fact that she was reluctant to acknowledge that she knew about them is evidence that this knowledge was instead the inspiration for a lie. In our view, that is not the only possible explanation for this aspect of her evidence, and we do not make a finding that this establishes that the allegations of sexual harassment were fabricated. However, reluctance to admit her knowledge of this aspect of the Lawyer's history was an additional reason that we felt we needed to treat SS' evidence with caution.

25In summary, although we did not form the view that SS was intentionally not being truthful, we found her credibility, particularly on issues related to Mr. Odeleye's conduct, to be problematic and we took this into account in assessing the evidence. However, with the exception of the allegation concerning sexual impropriety, much of the relevant evidence did not rely solely, or even principally, on SS' credibility.

26Mr. Odeleye, for the most part, seemed to be doing his best to recall matters accurately when giving his evidence. However, the challenge he faced was that, by his own admission, he was a poor record keeper. He had virtually no notes of events beyond his dockets, which were sparse. SS' case was one amongst many that he had handled, and it was years ago. Therefore, by his own admission, his memory of events - beyond the very thin documentation in the file - was extremely limited. At times, and given the documentation and other evidence, it seemed to us that Mr. Odeleye was embellishing his efforts on behalf of SS. We were therefore cautious in assessing his own descriptions of what he had done, particularly when it seemed not to accord with other evidence.

27The most problematic issue for him in this regard is the fourth allegation regarding misleading the LSO investigator.

ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Onus and standard of proof

28It is well recognised that the onus of proof of the allegations made rests with the LSO. It must prove the allegations on a balance of probabilities, that is to say the evidence must lead to the conclusion that it is more likely than not that the events grounding the finding of misconduct occurred. The evidence must be sufficiently clear, convincing and cogent to satisfy this test: F.H. v McDougall, 2008 SCC 53 at paras 44-46.

Failure to serve SS to the standard of a competent lawyer

Opinion evidence of Raoul Boulakia

29In support of this allegation, the LSO presented opinion evidence from Raoul Boulakia, an experienced immigration lawyer. Mr. Boulakia was called to the Ontario bar in 1990 and is certified by the LSO as a specialist in Immigration, Refugee and Citizenship Law. He has extensive experience litigating refugee claims before the IRB and the Federal Court. He was qualified as an expert in immigration law practice by the panel. He presented a comprehensive written opinion on the standard to be met by a competent lawyer handling a refugee claim before the IRB and the Federal Court and on whether Mr. Odeleye had met that standard.

30As an overarching point, Mr. Boulakia was of the opinion that Mr. Odeleye had acted reasonably in advising SS to make a refugee claim, to appeal the RPD decision, and to litigate in the Federal Court. He disagreed with Mr. Galang's advice to SS that "marital abuse" was "not really one of the grounds to file a refugee convention case for a person who needs protection" stating that Mr. Galang's opinion was contrary to both Canadian and international interpretations of the Refugee Convention. Further, Mr. Galang's advice to her that she should instead have made a humanitarian application was flawed and unlikely to succeed. In Mr. Boulakia's opinion, the only advice that Mr. Odeleye could have competently given SS was to proceed with a refugee claim.

31Mr. Boulakia conducted a thorough review of Mr. Odeleye's dealings with the matter. He concluded that while some aspects of the complaint were without merit, other aspects of his representation of SS fell below the standard of a competent lawyer. The following things were singled out as failing to meet the standard of competence:

• While opining that most of the narrative in the BOC form was detailed and persuasive, the narrative section does not explain clearly why SS believes there is no IFA. In particular, it lacks a coherent explanation of why she could not live safely anywhere in Tanzania, which is the evidence required; i.e., she had to show that she had a well-founded fear that her husband would be able to pursue her throughout the country. Mr. Boulakia attributes this deficiency, which turned out to be fatal to the application, to Mr. Odeleye's failure to properly and thoroughly interview SS to ensure that she coherently explained why she thought that her persecutor would locate and harm her throughout the country. The risks faced by the claimant must be coherently addressed, including the absence of IFA. They were not. Mr. Boulakia also points to Mr. Odeleye's continued representation of SS at the RAD and the Federal Court and that this precluded counsel's initial failures before the RPD being raised by SS as a breach of natural justice

• Allowing the client to provide false documents to the RPD, leading to a finding that she had done so, which badly impacted her credibility. In her claim, SS had alleged that her husband and one of his relatives had poisoned her. The RPD rejected this on the basis that SS had submitted non-genuine documents in support. The documents contained contradictory dates and names. This was patent on their face and the inconsistencies leading to a finding of falsehood is set out in some detail in the RPD's reasons. Mr. Boulakia points out that clients may feel that they need to exaggerate and that a competent lawyer must be vigilant to protect clients from such misconceptions. Mr. Boulakia points to the RAD's findings with respect to the inconsistencies as pointing to a clear lack of preparation on Mr. Odeleye's part.

• The quality of Mr. Odeleye's Memorandum of Argument in the Federal Court. The submissions were poorly written and importantly did not provide specific citations to the evidence, including documentary sources such as the BOC or, in the case of the hearing, a transcript or an affidavit of what was said. Another issue raised in this regard is the failure to file a reply to the Department of Justice's response. Given how poorly written the Memorandum was, failing to file a reply (and to take that opportunity to correct errors or give specific references) fell below the standard of competence.

Evidence re. insufficiency of the evidence relating to IFA

32With respect to the preparation of the evidence on IFA, we do not accept SS' evidence that the narrative in the BOC was prepared without any input from Mr. Odeleye and his staff. As outlined above, SS initially insisted that she received no help at all with the narrative but, when confronted with the substantive changes made to the second version, ultimately had to concede that she provided answers, but said that her answers were given only to the paralegal Iyabo. She agreed in cross-examination that Iyabo had asked her questions relating to her ability to flee internally, i.e., with respect to IFA.

33However, SS did acknowledge that Mr. Odeleye was the one who had asked her if she had gone to the police in her country. He also asked her to obtain the medical documents relating to the poisoning. And she acknowledged that he was present when she signed the BOC. The timing of these discussions was not identified, and it was not clear that they related to the preparation of the BOC as opposed to some later point in the process. However, it was an acknowledgment that she did have direct discussions with the Lawyer about the substance of her case.

34Mr. Odeleye`s account to LAO contained the following dockets:

a. April 21, 2017 (four hours): Meeting with client, review of her documents, commencing assistance to prepare refugee forms (incl BOC);

b. April 24, 2017 (three hours): Meeting with client, review file, completing assisting claimant to prepare refugee.

35Mr. Odeleye`s evidence was that LAO accorded a maximum of 7 hours to assist with the submission of a refugee claim, including preparation of the forms and these dockets coincided with the maximums. His evidence was that his staff would work with him to prepare the forms.

36Mr. Odeleye did not have notes or records of his meetings or discussions with SS. He admitted that his record keeping was not great. The effect of this and the passage of time was that he could not recall the work he had done beyond pointing to the BOC and the attached narrative and his dockets, and discussing his usual practices. He had no actual memory of the preparation of the forms. For example, there is an interpreter`s certificate on the BOC but Mr. Odeleye had no independent recollection of whether the form had been interpreted for her.

37On balance, despite SS' claim, we accept that Mr. Odeleye did at least some work preparing the BOC and other forms. However, how much of the work on the forms was done by Mr. Odeleye`s paralegal Iyabo and how much of it was done by him is difficult to ascertain. Despite SS' evidence to the contrary, we find that he likely did meet with her in the course of preparing the forms. However, he was unable to assist us with any detail of those discussions, and, as outlined below, there were serious deficiencies in his work product with respect to the IFA evidence and analysis. Mr. Boulakia remained firm in cross-examination on that point.

Evidence re. records concerning the poisoning incident

38With respect to the medical and other documentation with respect to the poisoning, SS' evidence is that Mr. Odeleye asked her to get it and so she obtained it from Tanzania and provided it to Mr. Odeleye. He did not review it with her or point out any mistakes. She claimed that he told her that he did not believe that it was true that she had been poisoned.

39Mr. Odeleye's evidence is that SS had obtained and provided certain documents as evidence to buttress the BOC. The poisoning and hospitalization had been mentioned in the BOC and so the RPD would therefore be expecting back up documentation. When he reviewed the documents provided by SS, he saw discrepancies with respect to two categories of documents. With respect to her children's birth certificates, one of the children's names was spelled differently than on the BOC. With respect to the medical and other records provided with respect to the poisoning there were several inconsistencies and discrepancies. He viewed this as a much more serious problem.

40At the hearing, a docket sheet was produced containing the following entries:

• "Name of child spelt differently on birth certificate – client gave me the go ahead to use"

• "some documents were contradictory with date/time Pointed it out to client and client gave me the go ahead to disclose"

41The entries are sequential and undated (the prior entry is dated May 4, 2017 and the subsequent entry June 26, 2017). SS' signature is found below the second entry. She confirmed during her evidence that it was her signature.

42Mr. Odeleye's evidence was that the two notes were written on different dates, with the birth certificate note having been written earlier. With respect to the documents concerning the poisoning, he presented the discrepancies to her. He said that SS insisted on the documents being submitted to the IRB and that she would explain them in the hearing. According to him, she was adamant. Given this, he had Iyabo prepare the note in the docket. Because this issue was more serious than the birth certificate issue, he wanted her to sign it. He testified that he was present when she did so.

43SS' evidence in cross-examination was that Mr. Odeleye asked her to sign the docket sheet authorizing him to provide documents that contained contradictions with respect to dates and times but that she didn't know anything about why and was simply asked to sign, which she did because her lawyer asked her to.

44In argument, the LSO suggested that Mr. Odeleye had not reviewed the records with respect to the poisoning incident, nor had he discussed them with his client. This was not put to the Lawyer in cross-examination. SS authenticated her signature and the note on its face indicates agreement to disclose contradictory documents. We therefore accept that there was a meeting and that the note was signed by SS. However, on the evidence we heard, we find that he did not provide a sufficient explanation to his client of the potentially harmful consequences of filing these documents, nor did he take any steps to mitigate against those consequences.

Evidence re written advocacy in Federal Court

45The issues raised by Mr. Boulakia are the lack of pinpoint citations in the Memorandum and the failure to reply to the Department of Justice's submissions. On the latter point, Mr. Boulakia did not raise any specific issue in the Department of Justice memorandum that required reply, nor did the LSO in argument. Mr. Boulakia's main point seemed to be that the reply would have offered an opportunity to repair the deficiencies in the main submission. Thus, the absence of a reply does not, in our view, raise a competency issue by itself.

46With respect to the original Memorandum prepared by Mr. Odeleye, Mr. Boulakia had certain criticisms of Mr. Odeleye's substantive work. He faults him for citing an outdated test on the standard of review. In his report he states that it was below the standard of a competent lawyer to cite an outdated test that set a higher threshold for judicial review. However, in cross-examination, he conceded that while it might create a poor impression, it was not below the standard of a competent lawyer and would not have a material impact on the result.

47In cross-examination, Mr. Boulakia also conceded that had the Memorandum contained proper citations, he would have concluded that the representation in Federal Court was competent. In his view, the submissions made a direct and specific argument to the Court, albeit with a casual, poorly edited writing style. In the end, leave was granted by the Court.

48On the citations issue, in his report, Mr. Boulakia pointed to the fact that since no transcript was prepared for inclusion in the application for leave, an affidavit from someone who had listened to and transcribed relevant portions of the hearing should have been included so that a record existed to ground the testimony referenced. However, at the outset of his evidence in the hearing before us, Mr. Boulakia drew our attention to the fact that a transcript had in fact been prepared and that Mr. Odeleye had filed an affidavit from SS, which he later realized could only be viewed by clicking on a link that he had overlooked. As a result, he withdrew this criticism.

49What remained of his opinion on this issue was the lack of citations to the evidence in the Memorandum prepared by the Lawyer, which impeded the judge's ability to verify the evidence in the record and thus detracted from the effectiveness of the argument. This is in contrast to the Department of Justice's Memorandum, which contained pinpoint citations and was thus perceived as more reliable. On cross-examination, Mr. Odeleye accepted that not including the citations was a lapse on his part. His evidence was that he had included citations in prior memos. He attributed the oversight in this case to being focused on getting the argument down so he could win and that he had forgotten to include them.

The standard of a competent lawyer

50Rule 3.1-2 of the Rules provides that a lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer. Rule 3.1‑1 defines a competent lawyer as one who has and applies the relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client. The definition specifies certain things, including: the knowledge of substantive law and procedure, investigating facts, identifying issues and advising the client on a course of action by applying legal, analytical, writing and advocacy skills, timely communication, conscientious, diligent and cost-effective performance and application of judgment.

51Commentary 3 to Rule 3.1-2 sets out the factors applicable to determine whether the requisite degree of knowledge and skill has been applied. These include:

a. the complexity and specialized nature of the matter;

b. the lawyer's general experience;

c. the lawyer's training and experience in the field;

d. the preparation and study the lawyer is able to give the matter; and

e. whether it is appropriate or feasible to refer or consult with a Lawyer of established competence in the field.

52Pausing here, we note that refugee claims matters before the IRB and the Federal Court are specialized and can be of some complexity. However, Mr. Odeleye had a number of years of experience specializing in this field. We are satisfied that he had the training and experience to accept the file. The most relevant factor under this commentary is whether he applied sufficient preparation and study to the matter.

53Commentary 15 to Rule 3.1-2 defines the distinction between incompetence (which is subject to sanction under the Rules) and simple negligence or mistakes, which are not: "This rule does not require a standard of perfection. An error or omission, even though it might be actionable for damages in negligence or contract, will not necessarily constitute a failure to maintain the standard of professional competence described in the rule. While damages may be awarded for negligence, incompetence can give rise to the additional sanction of disciplinary action."

54Additional guidance on where this line is drawn is found in Law Society of Upper Canada v Hohots, 2015 ONLSTH 72, where the panel said the following at para 29:

"Professional misconduct" itself comprises "conduct in a lawyer's professional capacity that tends to bring discredit upon the legal profession and includes, [a violation of the Rules] or certain commentaries": Law Society of Upper Canada v. Mohammedally, 2014 ONLSAP 5, at para. 29. Therefore, conduct that amounts to civil negligence may or may not fall to the level of professional misconduct, depending on whether it tends to bring discredit upon the legal profession. It may also bring the administration of justice into disrepute.

(Emphasis added)

55Commentary 15.1 provides additional guidance:

[15.1] The Law Society Act provides that a lawyer fails to meet standards of professional competence if there are deficiencies in

(a) the lawyer's knowledge, skill, or judgment,

(b) the lawyer's attention to the interests of clients,

(c) the records, systems, or procedures of the lawyer's professional business, or

(d) other aspects of the lawyer's professional business,

and the deficiencies give rise to a reasonable apprehension that the quality of service to clients may be adversely affected.

56Two other Rules are relevant to our analysis of the first allegation:

• Rule 3.2-1 regarding quality of service: A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. This Rule is to be applied in conjunction with Rule 3.1 regarding competence; and

• Rule 3.2-2: When advising clients, a lawyer shall be honest and candid.

Decision re IFA failure

57Counsel drew our attention to a number of prior Tribunal cases involving incompetent preparation of BOCs (formerly called Personal Information Forms or PIFs). Some of these cases featured allegations of failure to supervise the work of non-lawyers to whom particular tasks had been delegated, which was not a matter in issue in this case. With respect to the competence allegations in those cases, the facts were sufficiently different as to be of limited utility as directly applicable precedents: Hohots involved a lawyer who was overwhelmed by a high volume of clients and had delegated many of the essential services of a lawyer to translators. The PIFs contained significant inconsistencies and some outlined events that had not occurred. Law Society of Upper Canada v Jaszi, 2015 ONLSTH 132, was a case in which the lawyer had failed to file documents for certain clients and in Law Society of Upper Canada v Farkas, 2016 ONLSTH 149, the lawyer submitted narratives prepared by clients on their own, without review or revisions.

58These distinctions underline the point that the inquiry concerning competence is a fact specific inquiry that will depend on the factual findings of the particular case. However, there is some useful assistance to be drawn from these cases. First, the critical and foundational importance of the BOC (PIF) is emphasized and explained. Flowing from this is the importance of a lawyer understanding what information and analysis is necessary to include in it. It is the foundational document upon which the refugee's application is considered and their credibility assessed. The BOC requires the lawyer to ascertain both extensive personal information and a narrative dealing with why the claimant fears returning to his or her country. To do this the lawyer must interview the client extensively and prepare a complete narrative of persecution: Jaszi at paras 20-23, and Farkas at para 83.

59Mr. Boulakia in his evidence also emphasized the importance of the BOC. As outlined above, the principal criticism levelled at the BOC prepared and filed by Mr. Odeleye on behalf of SS was that it failed to properly address the issue of IFA. He described the IFA as follows in his report:

To be at objective risk in her country of citizenship and in need of the protection of another government, a person must be at risk in her entire country, not only a part of it. This is an integral part of being at risk and in need of international protection. As a result, a decision-maker must assess whether the refugee claimant has an "Internal Flight Alternative" as a component part of assessing prospective risk. This is set out in the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status", (Office of the United Nations High Commissioner for Refugees, Geneva, September, 1979) and explained in the Federal Court of Appeal's decision in Rasaratnam v Canada (MEI) 1991 CanLII 13517 (FCA), [1992] 1 F.C. 706.The Court of Appeal set out that assessing Internal Flight Alternative involves a two step analysis.

First, whether the person is at risk of persecution (and cannot get reliable state protection) throughout her country. If she is, there is no need to move on to the next step of analysis.

Second, because refugee determination must be realistic, "conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there."

60He also explained that it was essential to ask SS about IFA because she feared an individual (her husband) and not a national government. She would have to be asked whether she believed her husband will seek her out and harm her throughout Tanzania, if she moved to another location; and to show that she reasonably feared that he would. This is integral to whether she reasonably believes she is in danger. As he put it in his report:

If she were to answer that she does fear her husband throughout Tanzania, a competent lawyer would ask her some probative questions about this and assess what documentary evidence states about conditions in her country, before advising her that this seems realistic and reasonably likely to be accepted in a refugee hearing.

Even if a lawyer has not competently canvassed IFA as an issue before advising a person to claim refugee status, it becomes obvious this is integral to the refugee claim when the lawyer assists the client in preparing her answer to the "Basis of Claim" form required from all refugee claimants, because the question of whether a person tried to live elsewhere in her country (and if not, why not) is directly asked in the form.

61Mr. Boulakia is complimentary about certain aspects of the BOC prepared by the Lawyer. He says the following in his report:

The narrative included in the Basis of Claim form is very detailed about some of her experiences, and it seems that this combined with her oral testimony was persuasive with respect to most of her allegations in the RPD hearing.

62However, he criticizes the form for failing to explain why SS believes she has no viable IFA. He says the following:

The form as a whole did include an answer briefly addressing internal flight alternative at question 2(d), where SS stated that she believes she has no safe IFA because her husband came to threaten her in the village of Mbozi Hatelele, and that her grandmother told her to go back to him after he went to her home in the "Sumbawanga region" (implying she is stating she could not live with her grandmother anymore). This is not a coherent explanation of why she cannot live safely anywhere in Tanzania. It could, conversely, be taken as merely implying she should not stay with her relatives.

A lawyer interviewing a refugee claimant should ask probative questions which are integral to satisfying the definition of a Convention refugee. For example, the comment that [SS'] grandmother told her to reconcile with her husband should have led her lawyer to ask why she could not live safely on her own instead.

The narrative lacks a coherent explanation of why she fears her husband would pursue her throughout Tanzania. This is an integral part of explaining a refugee claim, as a refugee must have an objectively well-founded fear of prospective risk in the entire country of citizenship.

The refugee definition requires that a person show they would be at risk in the entire country, so the combined effect of mentioning two incidents and not giving a complete explanation in the narrative leaves the BOC poorly prepared.

63Mr. Boulakia opines that this deficiency with respect to the IFA meant the BOC failed to meet the standard of a competent lawyer. For Mr. Boulakia, a competent lawyer would know that the IRB will expect a cogent and thorough explanation on lack of IFA. This was missing.

64Counsel for the Lawyer put to Mr. Boulakia in cross-examination, and repeated to us in argument, that the factual basis for IFA was in the BOC, but that the problem was a failure by the RPD and RAD to properly analyze the IFA issue. In cross-examination, Mr. Boulakia disagreed with this. He answered that Mr. Odeleye had not given a complete factual basis for why SS thought she was unsafe throughout the country. For example, with respect to her evidence that she cannot feel safe because her husband is wealthy, there is no nexus provided as to how that connects to a lack of IFA, including why she cannot obtain assistance from the government.

65Therefore, the BOC failed to cogently explain why there was no internal flight alternative, and that this was a principal reason why SS' refugee claim was rejected. Given that the claim was based on the threat of domestic violence by her spouse rather than, say, a threat to her by government authorities, the need to thoroughly and cogently address the IFA issue should have been a top priority. The effort made was clearly insufficient. Further, the absence of any evidence in the Lawyer's file to the work done and the analysis considered is indicative of the shoddiness of the effort.

66We agree with Mr. Boulakia that Mr. Odeleye failed to meet the standard on this point. The key question is whether, as outlined in Hohots, this rose to the level of bringing discredit on the legal profession and therefore amounts to failure to serve to the standard of a competent lawyer. In our view, it does. The failing here demonstrates a deficiency in the knowledge of substantive law in the sense of not properly understanding the true nature and importance of IFA. It shows a deficiency in the proper investigating facts and the application of legal analytical and writing skills, timely communication, diligent performance and application of judgment, amongst other things. It shows a marked failure to pay sufficient attention to the interests of a vulnerable client. The bottom line is that in this case the IRB would have expected the absence of IFA to be thoroughly explained. It was not explained in the BOC and the client was not prepared by Mr. Odeleye to address the issue in the hearing. As the Federal Court put it in a decision quoted in Hohots: "Competent counsel would have known that the Applicant's narrative does not comply with the expectations of the RPD and that it would have been extremely detrimental to the Applicant at the hearing."

Decision re records on poisoning

67The records obtained from Tanzania and submitted to the IRB with respect to the poisoning had a devastating impact on SS' credibility. The RAD in its decision noted that there were numerous reasons to find the medical documents non-genuine, thereby undermining the credibility of the allegations that SS had been poisoned. It rejected the argument that her memory difficulties were an explanation for the credibility problems, stating that the contradictions and inconsistencies were inherent in the documents themselves.

68Mr. Odeleye acknowledged that, notwithstanding the written authorization he had obtained from his client, he was in a dilemma because he knew the documents were problematic but that the IRB would ask about them given the description of the poisoning in the BOC. SS would then say that she had given them to her lawyer. He felt that this left him with no choice but to deliver the documents to the IRB. However, even if this were so, simply filing them and leaving it to his client to explain the discrepancies at the hearing without adequately preparing her was an abdication of his responsibilities as a lawyer. In cross-examination, Mr. Odeleye admitted that the only step he took in the face of his client's insistence on filing problematic and contradictory documents was to have her sign the docket sheet.

69Mr. Boulakia's evidence was that a competent lawyer would have probed about the disparities and sought to explain them. If the authors of the documents could be contacted for an explanation, that should have been attempted. Her BOC should have been amended to deal with this issue and re-submitted at least 10 days before the hearing. It should also have been clearly explained to her that she would be questioned about the matter, and she should have been carefully prepared for that before the hearing.

70Mr. Odeleye did none of that. On the evidence we heard, we find that Mr. Odeleye did not explain, or at the least did not explain sufficiently, the seriousness of this issue when he had the client sign the docket sheet. The purpose of the signature on the docket sheet seemed instead to be to obtain some sort of cover for himself. He made no effort to explore or explain the discrepancies, nor to provide an explanation for them to the tribunal ahead of the hearing, despite the fact that he knew they would likely be so problematic that he needed to obtain signed written instructions before filing the documents.

71Further, he did not prepare her to explain this issue in the hearing. On his own evidence, his assistance was limited to having her refer to her memory problems in a general way. As Mr. Boulakia opined, she should have been made to understand that she would be questioned about these records so that she could be as prepared as possible to explain them. She was not. The consequences to her case were material.

72Mr. Odeleye clearly failed to serve to the standard of a competent lawyer in his conduct relating to these documents. The inadequacy of his preparation and his lack of skill rises to the level where it brings discredit to the profession.

Decision re written advocacy in the Federal Court

73As outlined above, the only remaining question is whether the lack of pinpoint citations to the evidence in the Memorandum amounts to a failure to serve to the standard of a competent lawyer. Mr. Odeleye gave evidence that it did not accord with his usual practice. That is a good thing. Not citing evidence in a written argument is sloppy practice that ought to be discouraged. However, in this instance, it does not rise to the level of failure to serve to the standard of a competent lawyer. Mr. Boulakia accepted that the basic argument made by the Lawyer in the Memorandum was sound. And the submission he made was successful in the sense that it resulted in a production order being issued by the Court.

Failure to advise SS of the option of applying for a LAO certificate on appeal

74The LSO alleges that after SS` refugee claim was rejected, and being aware of her vulnerabilities, the Lawyer failed to advise SS of the option to apply for a Legal Aid Certificate for the payment of the appeal of her refugee claim and the application for leave and judicial review and thereby failed to make efficient and convenient legal services available to SS and took advantage of her vulnerabilities for his economic gain and convenience, contrary to Rules 4.1-1 and 4.1-2.

75SS had a LAO certificate to cover her legal fees for submitting her refugee claim and for the hearing before the RPD. There was an issue in the hearing about when SS had applied for this certificate prior to her first attendance at the Lawyer's office or whether she applied for it at that time, and with the help of the Lawyer's staff.

76Documentary and other evidence made it clear that the process for the application for the certificate was commenced on April 18, 2017 and with the help of the Lawyer' staff. In particular, LAO produced the transcript of a call from SS to LAO on April 18, 2017 in which it is clear that she is calling LAO to inquire about applying for a certificate with the help of the Lawyer's staff. In any event, for the purpose of this allegation, it was clear to all that the Lawyer's fees for the refugee claim were covered by a LAO certificate.

77Notice of the RPD's decision denying SS' refugee claim was given on June 7, 2018. SS' evidence was that she met with Mr. Odeleye at his office and he told her that she had a right of appeal and that he would do the appeal, but she would have to pay because the government would not pay this time as they only pay once, meaning for the original claim before the RPD. He told her that the appeal would cost $3,000. She testified that at this time she was earning $15 an hour as a cleaner. She asked Mr. Odeleye if she could pay in installments. He agreed and she provided him with $1,000. Mr. Odeleye did not provide her with a written explanation of the appeal, nor with a retainer agreement.

78Mr. Odeleye testified that he spoke on the phone with SS on June 11, 2018 to notify her of the appeal process and to have her come to the office to start it. This much is included in a written docket. He also produced a written note of a meeting with the client on June 15, 2018 which contains a very brief entry to the effect that he met with her to review the RPD decision and that he advised her she had a right to appeal within 15 days. The note contains no reference to any financial terms. He testified that he had stopped taking LAO certificates for appeals and judicial reviews. He recounted that she had two jobs at this point and expressed the view that she would therefore no longer qualify for Legal Aid, though he did not say that he discussed that with her. He testified that they agreed to a fee of $3,000 for the appeal to the RAD. He did not prepare a written retainer and there was none.

79In his answer to the LSO's request to admit, the Lawyer says that he told SS that she could apply for a LAO certificate if she wanted to but that he was not accepting them for appeals. The response goes on to say that he told her she was at liberty to retain another counsel for the appeal on a LAO certificate. In cross-examination, he conceded that he may not have made the latter statement but insisted he had told her that he did not take certificates for appeals.

80Mr. Boulakia opined on this issue. In his report, he expressed the view that as SS had indicated that she would have difficulty paying, it would have been appropriate for Mr. Odeleye to inform her that while he does not accept certificates for appeals, she could apply for legal aid and seek another lawyer who does. The fact that she was employed did not necessarily mean that she would not qualify for Legal Aid.

81It is of note that the RPD decision followed fairly shortly after the hearing, which was in May 2018. In late April, in advance of the hearing, Mr. Odeleye had obtained SS' then current employment documents. They appear to show that she held two jobs, one at minimum wage and one where the wage was not set out. It is not clear to us, if this indeed reflected her employment status in June 2018, or that this disqualified her from Legal Aid, and Mr. Odeleye did not seem certain in giving his evidence that it would. Mr. Boulakia in his report says that on the basis of SS' Canada Revenue Agency notice of assessment for 2018 she would have qualified for Legal Aid. It was clear from the evidence that she was in difficult economic circumstances.

82Rule 4.1-1 states that a lawyer shall make legal services available to the public in an efficient and convenient way. Commentary 3 to this Rule states:

A lawyer who knows or has reasonable grounds to believe that a client is entitled to Legal Aid should advise the client of the right to apply for Legal Aid, unless the circumstances indicate that the client has waived or does not need such assistance.

83Rule 4.1-2 provides that in offering legal services, a lawyer shall not use means that are, amongst other things, false and misleading, amount to coercion, duress or harassment, take advantage of a vulnerable person, or otherwise bring the profession or the administration of justice into disrepute.

84Although both rules were cited, the LSO's emphasis was on Rule 4.1-1 and the failure to advise the client of the right to apply for Legal Aid.

85The commentary to that rule makes clear that if the lawyer has reasonable grounds to believe that the client is entitled to Legal Aid, the lawyer should advise the client of the right to apply for it unless the client has waived the right or does not need the assistance.

86In our view, Mr. Odeleye had reasonable grounds to believe that SS was entitled to Legal Aid. He had just finished assisting her with a proceeding for which she had been issued a certificate. He was aware that she was a refugee claimant, who was new to Canada, had recently lived in a shelter, and was working at minimum wage. His assumption that because she may have held two such jobs, she would not qualify for Legal Aid is not a reasonable one for him to have made without further due diligence into the particulars of her income. That information was readily available to him. The fact that she needed to pay the $3,000 he asked her for in installments was a further indication to him of her circumstances. She clearly needed assistance, and she had not waived any right she may have had to Legal Aid.

87Mr. Odeleye was therefore under an obligation to inform her of her right to Legal Aid. On SS' evidence, he clearly did not. She says that he told her that Legal Aid was not available. Mr. Odeleye says he told her that he does not accept certificates for appeals. On cross-examination he resiled from the assertion made in his response to the request to admit that he had told her that she could apply for a certificate if she wanted to and retain another counsel.

88So the question is whether, in the circumstances, telling her that he doesn't accept certificates on appeal is sufficient to discharge his positive obligation to advise her of her right to apply for Legal Aid. We find that it is not.

89Mr. Odeleye's office had assisted SS to apply for a LAO certificate when she first came to him in April 2017 with her refugee claim. He knew that she was a vulnerable and unsophisticated client, new to Canada and with English as a second language. He was the only lawyer she had dealt with. In context, it was incumbent on Mr. Odeleye to ensure that she understood that if he was not prepared to accept a certificate, that she could seek out another lawyer who might accept one and apply. It is quite possible that a vulnerable client in the situation of SS could reasonably misinterpret "I don't accept certificates for appeals, I charge $3,000 for them" as "this appeal will cost you $3,000". Put differently, we do not have to find that the Lawyer told her that there were not certificates available on appeal (which was SS' evidence) in order for a breach of the Rule to be found. The burden is on the lawyer to ensure that the client knows that he or she can apply for Legal Aid. Mr. Odeleye did not discharge this responsibility.

Inappropriate and sexually suggestive comments and sexual harassment

90The LSO alleges that during the retainer the Lawyer made inappropriate comments about SS' physical features and made other sexually suggestive comments to her, which made her uncomfortable. Thus, the Lawyer failed to act with honour and integrity by engaging in sexual harassment, contrary to Rules 2.1-1 and 6.3-3.

91SS gave evidence that after she decided to appeal to the RAD, she met with the Lawyer in his office. He touched her left shoulder. He then asked her why she dressed like a traditional woman, rather than like a Canadian, like a modern woman. She said he told her that she had a nice shape and good breasts, like she had not breast fed her children. She was uncomfortable and asked him to stop and concentrate on her case.

92She testified that her appointments were often late in the afternoon but that the Lawyer had at one point proposed an appointment at 10 a.m. on a Saturday. They were alone. She said that at this meeting he had proposed to rent her a room for $700 or $800 per month for them to enjoy, rather than go to a hotel. She said that he asked her if she had tried to make love by using the back of her body, referring to sex. She didn't want this and so was rude to him. He was quiet. She told him that she trusted him like a brother and asked him to respect her. She reminded him that he had a wife. He told her that women were like fruit and men like fruit salad.

93SS also mentioned a text that Mr. Odeleye sent her about her sister. She testified that he had told her that he had seen this lady from her Whatsapp profile and asked about her. SS told him it was his sister and he asked her to bring the sister to his office if she came to visit. A text between SS and the Lawyer dated August 31, 2020 was produced which read as follows:

RO: Is they your sister in the DP?

SS: Yes

RO: Is she in Toronto?

SS: Noo she went back home. Up to December.

RO: You mean return to Canada in December?

SS: Yes. Because she live in usa

RO: I see. Is she going to visit Canda sometime?

SS: Yes

RO: Ok. I guess you will bring her to visit your [rest of message cut off]

94In cross-examination, SS' complaint to the LSO was put to her. In the complaint, the last sentence reads, "during my visits to him he was always touching me inappropriately. I do not know if it's a sexual assault but he touches me inappropriately". She confirmed that this was a reference to the touch on the shoulder. It is to be noted that in her evidence-in-chief, she referenced only one incident of this. She made no mention in the complaint that Mr. Odeleye sought sex from her. She explained that Mr. Galang had helped her with the complaint and that he is a younger man. Because of that, she was shy to tell him about it, and that this was cultural. However, she did report it to Nina Iwanowich, the LSO investigator, who is a woman.

95SS was then taken in cross-examination to her interview with Ms. Iwanowich. In her interview, she explained that the issue of Mr. Odeleye offering to help her rent a room arose when she confided in him that the boyfriend she was living with at the time was treating her badly. Initially, it was not clear in her answers to Ms. Iwanowich whether the discussion about renting the room was for sexual purposes or was a discussion about how Mr. Odeleye might help her with a difficult domestic situation. However, toward the end of the exchange in the interview, she described an occasion where he asked her to come to his office, at which time he told her that they should go have sex and he would help her with her kids. This was said to have been in 2018, after her initial hearing was denied.

96She also said in cross-examination that inappropriate comments continued after that. However, when it was put to her that, given Mr. Odeleye's alleged behaviour, she would have sought to avoid a Saturday appointment where she might find herself alone in the office with Mr. Odeleye, she evaded the question. She was then shown a series of text exchanges between them in which they had agreed to meet in his office on Saturday, December 5, 2020. The Saturday date was suggested by her because she was unable to meet on the previous day. This message was provided by Mr. Odeleye. SS had provided other text messages between them in and around this time to the investigator, but not this exchange. When asked about that in cross-examination, she said that she had deleted some of Mr. Odeleye's texts.

97Mr. Odeleye denied that he had made any comments about her body, or that he had propositioned her for sex in any way. He was not cross-examined as to any of her specific assertions. He was asked about the text message to her concerning her sister and he explained that he had seen a photo of a woman and wanted to ensure the person wasn't misidentified. While the explanation was somewhat unusual, the language in the message about the sister was innocuous.

98Rule 2.1-1 provides that a lawyer has the duty to carry on the practice of law and discharge all responsibilities to clients honourably and with integrity. The commentaries provide that if a client has any doubt about the lawyer's trustworthiness, the essential element in the true lawyer-client relationship will be missing. If integrity is lacking, the lawyer's usefulness to the client will be destroyed.

99Rule 6.3-3 provides that a lawyer shall not sexually harass a client. Sexual harassment is defined in Rule 6.3-0 as one incident or a series of incidents involving unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature when such conduct might reasonably be expected to cause insecurity discomfort, offence or humiliation, or when submission to such conduct is made implicitly or explicitly a condition for the provision of professional services. The commentary provides a non-exhaustive list of examples of behaviour that constitutes sexual harassment including:

a. unwelcome sexual flirtations, advances or propositions;

b. requests for sexual favours;

c. unwanted touching.

100In terms of our approach to the analysis, the following guidance is provided by Law Society of Ontario v Chima, 2025 ONLSTH 21:

[8] In Law Society of Ontario v Fathi, 2021 ONLSTH 39, the panel relied on Janzen v Platy Enterprises Ltd., 1989 CanLlI 97 (SCC) at paragraph 56, which articulated the following test for finding sexual harassment:

1. The conduct must be sexual in nature.

2. The conduct must be unwelcome.

3. The conduct must detrimentally affect the relevant environment or lead to adverse consequences.

[9] The Fathi panel also relied on Tonn v The Curtis Goddard Team, 2020 HRTO 804 at paragraph 206, where the Human Rights Tribunal noted that:

… in considering allegations of sexual harassment, while triers of fact must, of course, carefully analyze each discrete allegation presented, so too must they consider whether the sum of the allegations constitute a pattern of sexual harassment instances; that is to say, the forest should not be lost in the scrutiny of the trees.

101Additional useful guidance may be found in Re Hefflin, 2022 LSBC 41 at paras 38-51.

102In summary, according to SS' evidence during the hearing, Mr. Odeleye did the following:

• touched her on the shoulder at least once;

• following that, made personal comments about how she dressed;

• made comments about her body shape, and specifically about her breasts;

• suggested that he rent her a room so they could have sex;

• on one occasion, suggested she try making love using the back of her body;

• said to her that women were like fruit and men like fruit salad, meaning that men like a number of women; and

• sent her a text about her sister.

103Given its language, and having heard the evidence of both SS and the Lawyer about the text concerning the sister, we do not accept that sending it was a breach of any rule. However, all of the other actions and words, if they in fact happened, meet the definition of sexual harassment and individually and cumulatively, constitute a breach of Rules 2.1-1 and 6.3-3. SS says they happened, Mr. Odeleye says they did not. The issue therefore turns on credibility, in particular that of SS.

104We return to the issue of the onus of proof discussed above. Again, the evidence required for the LSO to discharge its onus of proof is evidence that is sufficiently clear, cogent and convincing to establish that it is more likely than not that the events occurred. There is no objective standard to measure this sufficiency. The exercise is particularly challenging in cases where there is little evidence other than that of the complainant and the respondent. In order to find for the LSO, the panel must find that the evidence was sufficiently clear, convincing and cogent to meet this test: F.H. v McDougall at para 46.

105The following guidance is found in McDougall:

[57] At para. 5 of her reasons, the trial judge had regard for the judgment of Rowles J.A. in R. v R.W.B. (1993), 24 B.C.A.C. 1, at paras. 28-29, dealing with the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence. Although R.W.B. was a criminal case, I, like the trial judge, think the words of Rowles J.A. are apt for the purposes of this case:

In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness' evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness' evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here. [para. 29]

[58] As Rowles J.A. found in the context of the criminal standard of proof, where proof is on a balance of probabilities there is likewise no rule as to when inconsistencies in the evidence of a plaintiff will cause a trial judge to conclude that the plaintiff's evidence is not credible or reliable. The trial judge should not consider the plaintiff's evidence in isolation, but must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case.

106There is no corroborative evidence for the evidence given by SS as to the events set out in para 100 above. In light of the concerns we have outlined about SS' credibility above, both in the credibility section of our reasons and in respect of her cross-examination on the allegations of sexual harassment, we find that the LSO has not met its onus of proof to establish that these events occurred on a balance of probabilities.

107Our concerns relate to the quality of SS' evidence generally, but some are specific to the allegations of sexual harassment. In particular, her persistent refusal in cross-examination to acknowledge that she had asked for the Saturday appointment, and her persistent refusal to concede that she had been aware of the prior allegations of sexual assault against Mr. Odeleye, raised issues for us about the reliability of her evidence.

108Our conclusion on this issue does not require us to go as far as to find that SS was not telling the truth and we do not do so. Rather, we find that in light of the issues of credibility outlined, the LSO has not met its onus of proof on this allegation. As the Supreme Court said in McDougall, where events occurred years earlier, and the only evidence is the word of one person against the other, these determinations are a difficult task for the trier of fact.

Misleading the Law Society

109The LSO alleges that during a virtual interview with a Law Society investigator Nina Iwanowich, Mr. Odeleye failed to be honest in his representations to the LSO, thus misleading it and breaching Rule 2.1-1.

110The essence of this allegation is that Mr. Odeleye told the investigator that SS had applied for a Legal Aid certificate before coming to his office for the first time on April 18, 2017. We have found that this was not the case. The preponderance of the evidence is that Mr. Odeleye and his staff assisted her with a Legal Aid application.

111In his initial letter dated March 31, 2022 responding to the complaint, the Lawyer wrote that SS first attended his office on April 18, 2017. He wrote, "[SS] had contacted Legal Aid Ontario and had obtained Legal Aid certificate to cover the cost of her legal representation for her refugee matter". He advised the LSO that he had used his file materials to refresh his memory, and that his recollection was largely based on that.

112Mr. Odeleye was interviewed by Ms. Iwanowich on September 2, 2022. In that interview he told her, "I don't have a lot of independent recollections because I deal with a lot of files, so…But I looked at the file and form the file I---I can say that she came to the office seeking representation for a refugee matter. I believe that she had already obtained Legal Aid coverage."

113In answering follow-up questions from Ms. Iwanowich, Mr. Odeleye said the following in an email dated January 5, 2023 in the context of explaining that SS understood her options when he told her that he would not accept a Legal Aid certificate for the initial appeal: "There was no doubt in my mind that she understood. Remember that she had applied for LAO certificate before the RPD proceeding. She made that application on her own, so she was familiar with the process of Legal Aid. She clearly understood her options."

114On January 13, 2023, LAO emailed Ms. Iwanowich with a copy of the transcript of a call. The transcript makes clear that SS called LAO on April 18, 2017 with the assistance of someone in Mr. Odeleye's office to inquire about making an application for a LAO certificate.

115On September 28, 2023, the Lawyer responded to a request to admit served on him by the LSO. In that response, the following was included:

• The Lawyer wrote that he had "no independent recollection of how the Legal Aid certificate was obtained due to the effluxion of time."

• He admitted the statement quoted above from his March 31, 2022 letter but wrote that it was made in the context of the statement that he did not have a lot of independent recollection.

• With respect to the statement in his September 2 interview, he said that it was qualified by the fact that he had no recollection of events but was relying only on his records.

• With respect to his January 5, 2023 email, the Lawyer admitted that he made the statement but qualifies it in the sense that it was said in the context of SS understanding that she could have applied for LAO coverage to undertake her appeal and judicial review as she had made an application for LAO coverage before and so she knew that option was available to her. He also claimed that it was qualified by the statement that he made in his March 2022 letter that he did not have an independent recollection (though there is not an express reference to this in the email).

• With respect to the call transcript from LAO, the Lawyer again reiterated that he had told the investigator that he had no independent memory of this event at the time of the interview and again repeated the caveat in his March 2022 letter concerning the need to refresh his memory and that the LSO had not shared the transcript to refresh his memory.

116As set out above, Rule 2.1-1 provides that a lawyer has the duty to carry on the practice of law and discharge all responsibilities to clients honourably and with integrity. The rule is to be interpreted in a broad and purposive way. Integrity is equated with trustworthiness, which is an essential requirement for a lawyer. The concept of honour is equated with assuring conduct that is consistent with public confidence in the administration of justice and in the legal profession: Law Society of Ontario v McCallum, 2024 ONLSTH 29.

117The Law Society is charged with protecting these values, including through its investigations. Lawyers have a commensurate legal obligation to co-operate in the investigative process, including by providing timely and truthful information to investigators.

118However, it is also true that Lawyers are human, with human frailties including fallible memories. While they have an obligation to be diligent in making what review they can to refresh memory, where a question is posed concerning an event that has occurred in the past and for which a Lawyer has no corroborative document or other information, he or she may well have to qualify the information provided with a caveat that it is given to the best of the Lawyer's recollection. Caution should be exercised in those circumstances not to go beyond the limits of memory and to provide, albeit inadvertently, false or misleading information to an investigator.

119In our view, what occurred here is that the Lawyer, in the absence of any indication in his file as to how SS had obtained her LAO certificate, developed the belief that she had obtained it prior to coming to his office for the first time. While he may well have used his file material to refresh his memory, as he says in his March 2022 letter, there was no evidence before us that anything in his file provided any grounds for his statement that SS had already obtained her certificate. The actual evidence concerning that issue (and which was contrary to the Lawyer's statement) was not obtained until much later, when the LSO investigator obtained material from Legal Aid.

120The Lawyer then said he believed that she already had the certificate when she first came to see him in his September 2022 interview. In his January 2023 email he says that she had made the LAO application on her own. In this communication to the LSO, his statement is unqualified. There is no express reference to his reconstruction of events from a thin file, based on a poor memory. Rather, the unqualified statement is used by him to argue that SS must have understood her Legal Aid rights in the context of the appeal.

121The Lawyer argues that there is an implicit caveat that flows from the ones he provided in his March letter and September interview. However, to a large extent that is a red herring. If there had been something in his file that he could point to in order to ground a mistaken belief that she already had a certificate when she first came to see him, that would be one thing. But a Lawyer cannot rely on the fact that he has no information about something in his file in order to justify a statement to an investigator that is not accurate.

122We do not find that Mr. Odeleye was engaged in an attempt to deliberately mislead the investigator. His answers to the request to admit appear to show that he was, at least by that point, acknowledging an error on his part. We are also not of the view that every error in a response to an investigator's question amounts to professional misconduct. Perfection is not the standard. However, Lawyers are expected to exercise diligence before providing information to a LSO investigator. Mr. Odeleye could have retained information in his file about his office assisting SS with her certificate. He could also have made inquiries of LAO himself before responding to Ms. Iwanowich. What he could not do was state an unverified fact unequivocally in the way he did. This did not meet his obligation of truthfulness and candour in answering the LSO's inquiries and amounted to a breach of Rule 2.1-1.

CONCLUSION

123We find that Mr. Odeleye has engaged in professional misconduct as set out above.

124The Tribunal Scheduling Coordinator is to arrange a penalty hearing.