COURT OF APPEAL FOR ONTARIO

CITATION: Afolabi v. Law Society of Ontario, 2025 ONCA 257

DATE: 20250407

DOCKET: COA-24-CV-0542

Gillese, Roberts and Coroza JJ.A.

BETWEEN

Korede Afolabi, Alson Harold Alfred, Azhar Imdad Ali, Poonam Bhurani, Gargi Singh, Gurveer Singh, Harjeet Kaur, Haleema Zeeshan Kiani, Faiqa Mirza, Qamar Naeem, Justice Agboramaka Nwabuwe, Jacinta Nkemdilim Obinugwu, Nneoma Diana Okoro, Muhammad Asad Rehan Qazi, Syed Hassan Raza Safdar, Natasha Eleen Stewart, Subajanany Subramaniam, Ishu Talwar, Ali Usman Virk and Faisal Zaman

Applicants (Respondents)

and

Law Society of Ontario

Respondent (Appellant)

Sean Dewart and Tim Gleason, for the appellant

Allen Rouben, for the respondents Ali Usman Virk, Syed Hassan Raza Safdar, Muhammad Asad Rehan Qazi, Qamar Naeem, Haleema Zeeshan Kiani, Gurveer Singh, Poonam Bhurani and Alson Harold Alfred

Gregory Ko and Frank Nasca, for the respondents Azhar Imdad Ali, Harjeet Kaur, Nneoma Diana Okoro, Ishu Talwar and Faisal Zaman

Marek Z. Tufman, for the respondents Natasha Eleen Stewart, Gargi Singh, Korede Afolabi, Justice Agboramaka Nwabuwe and Jacinta Nkemdilim Obinugwu

Jeffrey Haylock and Dayna Christy, for the respondent Subajanany Subramaniam

Faiqa Mirza, acting in person

Heard: January 22, 2025

On appeal from the orders of the Divisional Court (Justices David L. Corbett, John R. Sproat, and Shaun O’Brien), dated November 29, 2023, with reasons reported at 2023 ONSC 6727.

Gillese J.A.:

I. Overview

[1] This is an appeal by the Law Society of Ontario (the “LSO”) from orders made by the Divisional Court in 20 related judicial review applications (the “Applications”).

[2] The LSO administered approximately 1700 barrister and solicitor licensing examinations to candidates in November 2021. Afterward, it learned that the integrity of the exams was compromised and that a tutoring agency, NCA Exam Guru (“NEG”), had obtained copies of the exams prior to their administration. The LSO also obtained four answer sheets, referred to as “cheating keys”, which duplicated the LSO exam questions and provided answers.

[3] The LSO’s Licensing & Accreditation Department (the “Licensing Department”) conducted an initial review of the November 2021 exams and identified candidates whose test results showed a possible connection to a cheating key (the “Identified Candidates”).

[4] The LSO retained external counsel (“External Counsel”) to investigate the characters of the Identified Candidates (the “Investigation”).

[5] The Licensing Department retained Caveon Exam Security (“Caveon”) to analyze the November 2021 exams, using statistical methods to identify anomalies indicative of use of a cheating key, collusion, or fraud.

[6] Caveon identified anomalies in approximately 10% of the examinations. The anomalies suggested the candidate in question, whether intentionally or inadvertently, had advance access to a cheating key.

[7] Twenty of the candidates who passed the November 2021 exams but had anomalous results, according to Caveon’s analysis, brought the Applications for judicial review of the decision the LSO ultimately took in respect of this matter (the “Applicants”). With one exception, the Applicants were associated with NEG.

[8] By letter dated August 31, 2022, the Director of the Licensing Department (the Director”) wrote to the Applicants advising that the evidence supported the conclusion that each had breached the applicable licensing rules by engaging in “prohibited actions”. It further advised that the “appropriate administrative outcome” was to deem void both the Applicants’ November 2021 exam results and the Applicants’ registration in the LSO licensing process (the “Decision”).[^1]

[9] In a section of the letter entitled “How This Decision Impacts You”, the Applicants were told: (1) they could re-register for licensing with the LSO but not for approximately one year; (2) if they chose to apply for licensure in Ontario or another jurisdiction, they had to answer “yes” to the question on the “Good Character” section of the registration form asking whether the Applicant had ever been sanctioned or had a penalty imposed on them by a court, administrative tribunal, or regulatory body; (3) the LSO might conduct a further investigation into the Applicant’s good character; and (4) that the LSO would share its Decision with other Canadian provincial and territorial law societies, whom it had already advised of the fact of the Investigation.

[10] The Divisional Court heard the Applications together. It concluded that the decision to void the Applicants’ exam results was reasonable. However, it found that the measures the LSO took beyond voiding the exam results breached the Applicants’ right to procedural fairness because they were imposed without holding a hearing and making a finding that the Applicants had engaged in intentional misconduct.

[11] By orders dated November 29, 2023, the Divisional Court quashed the Decision, apart from the portion that voided the November 2022 exam results, and remitted the matter to the LSO to determine next steps (the “Orders”). The Divisional Court viewed the Applicants as having been largely successful on the Applications and ordered costs in their favour (the “Costs Orders”).

[12] The LSO appeals. It submits that, when considered in the factual and statutory context, the Applicants were treated fairly and the Orders should be quashed. It also submits that the procedure leading to the Costs Orders was flawed and those orders too should be set aside.

[13] For the reasons that follow, I accept the LSO’s submissions and would allow the appeal.

II. Overview Of The Relevant Legislative Provisions

[14] The legislative provisions relevant to this appeal can be found in Schedule A to these reasons. In this section, I summarize the key legislative provisions governing the LSO actions following the November 2021 exams. An understanding of these provisions provides context for considering the LSO actions described in the Background section that follows. A fuller consideration of the relevant legislative provisions is undertaken in the Analysis section of these reasons.

[15] Section 1(3) of the LSA provides that a hearing is not required before any decision is made under the legislative provisions unless specifically required. It reads as follows:

A hearing is not required before making any decision under this Act, the regulations, the by-laws or the rules of practice and procedure unless the Act, regulations, by-laws or rules of practice and procedure specifically require a hearing. [Emphasis added.]

[16] Different departments of the LSO respond – sometimes simultaneously – to different issues that arise in the regulation of the legal profession. That occurred in this case. Following the November 2021 exams, both the Licensing Department and the Professional Regulation Division were called on to respond when the LSO learned that the integrity of those exams was in question.

[17] The Licensing Department began by reviewing the November 2021 exams because of the threat posed to the integrity of the licensing examinations and licensure process. The Professional Regulation Division retained External Counsel to begin the Investigation because of possible ethical concerns.

Relevant Licensing Provisions

[18] By-law 4 is the LSO licensing by-law.

[19] Section 8(1) of By-law 4 sets out the requirements for the issuance of a licence under the LSA. It stipulates, among other things, that the applicant for a licence must be of good character.

[20] Section 8(2) of By-law 4 provides that an applicant who “makes any false or misleading representation or declaration on or in connection with an application for a licence” is deemed to not meet the requirements for the issuance of a licence. In such a situation, s. 14(2) deems the person to have not met the requirements for taking a licensing examination and the successful completion of any licensing examination taken by the person is deemed to be void.

[21] Section 18(2) of By-law 4 provides that a person who makes any false or misleading representation or declaration in connection with registration in the LSO: is deemed to not meet the requirements for registration; the person’s registration is deemed to be void; the successful completion of any licensing examination taken by the person is deemed to be void; and the successful completion of any professional conduct course conducted by the LSO and any service under articles of clerkship are deemed void.

Good character provisions

[22] Section 27(2) of the LSA stipulates that the applicant for a licence must be of good character.

[23] Section 27(4) provides that an application for a licence may be refused only after a hearing.

III. Background

[24] This appeal requires a thorough understanding of the actions taken by the LSO following the November 2021 exams. The timeline that follows summarizes those actions.

November 2021 – January 2022

• The LSO administers approximately 1700 barrister and solicitor licensing examinations and learns their integrity was compromised: NEG had obtained copies of the exams and provided answers in advance to some candidates. The LSO obtains four of these “cheating keys”.

• The Licensing Department’s initial review of the November 2021 exams leads to the list of Identified Candidates whose test results showed a possible connection to a cheating key. It retains Caveon to conduct a statistical analysis of the November 2021 exams to identify anomalies indicative of use of a cheating key.

• The LSO Professional Regulation Division appoints External Counsel to investigate the character of the Identified Candidates.

February 2022

• The Licensing Department places the licensing process of each of the Identified Candidates in abeyance.

April – May 2022

• External Counsel sends the Identified Candidates a letter dated either April 11, 2022, or May 16, 2022, stating: (1) their character was being investigated pursuant to s. 27(2) of the LSA and By-law 4; (2) which of their November 2021 exams had been flagged; and (3) they were suspected of obtaining examination content from NEG before they wrote the exams. It asks the Identified Candidates to provide specific documents and information to the team conducting the Investigation (the “Investigative Team”) and, if the person had engaged in any of the alleged improper conduct, “to provide any representations you would like to make as to how or why this conduct does or does not reflect on your present character”.

• The Applicants provide written responses to the Investigative Team.

June 2022

• Caveon delivers its initial report, in which it recommends invalidation of approximately 10% of the November 2021 exams (the “Caveon Identified Candidates”).

July 2022

• The Director sends a letter dated July 14, 2022, to the Caveon Identified Candidates stating:

(1) although the Investigation was ongoing, the Licensing Department had determined that the evidence obtained to that point in time strongly supported the conclusion the candidate had breached the rules governing the licensing process by engaging in “prohibited actions regarding the November 2021 exams”;

(2) the Licensing Department was assessing the appropriate administrative or regulatory outcome, and would make that decision in consultation with the Professional Regulation Division and the Investigative Team;

(3) the LSO might “refer your application for licensure to the Hearing Division of the Law Society Tribunal for a hearing into whether you are presently of good character pursuant to section 27(4) of the [LSA]”;

(4) the Licensing Department was considering several administrative outcomes short of a formal hearing which are available under By-law 4. The principal administrative outcomes being considered by the Licensing Department were (a) deeming void the candidate’s November 2021 exam result(s) pursuant to subsection 14(2) of By-law 4 and (b) deeming void the candidate’s registration in the LSO’s licensing process, including the successful completion of any licensing examinations and experiential training, pursuant to subsection 18(2) of By-law 4 and section 13.4 of the Licensing Process Policies; and

(5) the candidates were invited to make written submissions on the appropriate administrative or regulatory outcome and to provide any additional information that might be relevant to that determination.

• By letter dated July 18, 2022, to the Caveon Identified Candidates, External Counsel advised he was writing further to the Director’s July 14, 2022 letter. This letter outlines the specific evidence the Investigative Team had collected in relation to each Caveon Identified Candidate and invites them to respond.

August 2022

• The Applicants provide written responses to the External Counsel’s letter of July 18, 2022, with the requested information and their submissions on the appropriate outcome.

• Caveon delivers its final report. The only significant change from its initial report is its recommendation that two further solicitor exam results be invalidated.

August 31, 2022

• By letter dated August 31, 2022, the Director advises the Caveon Identified Candidates that the Licensing Department, in consultation with the Professional Regulation Division and the Investigative Team, had made a decision as to the appropriate administrative outcome (the “Decision”) based on available evidence.

• The available evidence included: any submissions and/or evidence the Caveon Identified Candidates had provided to the LSO within the timeline established by the Investigative Team; the Caveon Identified Candidate’s written submissions previously provided in the context of the Investigation; summaries of the evidence prepared by the Investigative Team; and an analysis of the licensing examinations which Caveon had completed.

• The Decision was:

(1) to deem void the Caveon Identified Candidate’s November 2021 exam results, pursuant to subsection 14(2) of By-law 4; and

(2) to deem void the Caveon Identified Candidate’s registration in the LSO’s licensing process, pursuant to subsection 18(2) of By-law 4 and section 13.4 of the Licensing Process Policies.[^2]

• In a section of the letter entitled “How This Decision Impacts You”, the Caveon Identified Candidates were told that:

(1) they could not re-register for licensure with the LSO until a year after the date of the letter;

(2) the outcome was a form of sanction imposed by a regulatory body that would have to be disclosed on the registration form for licensure; and

(3) the LSO would share the Decision and its basis with other provincial and territorial law societies across Canada.

• The Caveon Identified Candidates were also told they could request a review of the Decision within 15 days of the date of the letter by submitting a written request to the Executive Director of Professional Development and Competence [the “Executive Director”].

September – October 2022

• All but one of the Applicants request that the Executive Director review the Decision.[^3]

November 2022

• By letter dated November 3, 2022, the Executive Director advises the Applicants of her review decision. In the letter, she observes that the decision-making process was an administrative one, rather than an adjudicative one. She states that she had read (i) the written materials the Applicant provided in response to the Decision, (ii) the information and evidence considered by the Licensing Department, (iii) Caveon’s final analysis of the licensing examinations, (iv) all written materials and evidence each Applicant had provided to the Investigative Team, and (v) summaries of the evidence prepared by the Investigative Team. The Executive Director found the Decision was reasonable. She explained:

The Decision is justified and tenable in consideration of the facts and the law. The process followed by the LSO, which included notice, the use of [External Counsel], disclosure, the ability to provide written representations on multiple occasions, decisions with reasons, and the ability to request a review, was fair and appropriate to the nature of the decision made. Further, the administrative outcome imposed was consistent with the statutory scheme and is supported in the circumstances.

• However, the Executive Director exercised her discretion and modified the start date of the one-year disqualification period before the Applicants could re-apply to the licensing process so that it would begin on the date their application for licensing was placed in abeyance or the date on which they were notified of the Investigation, whichever was earlier.

[25] In their Applications, the Applicants sought orders: (1) quashing the Decision, as amended by the Executive Director; (2) restoring their November 2021 exam results; (3) reinstating them as candidates in the licensing process; and (4) enjoining the LSO from initiating good character hearings. The Applicants submitted the matter should not be remitted back to the LSO because the LSO’s conduct was so egregious as to amount to an abuse of process.

[26] The Applicants also brought motions to admit additional evidence on the Applications. The Divisional Court dismissed those motions.

[27] The Divisional Court heard the Applications together.

IV. The Divisional Court Decision

[28] The Divisional Court found the decision to void the Applicants’ examinations results was reasonable, noting that it addressed the LSO’s duty to maintain the integrity of the exam process and did not breach the requirement of procedural fairness. However, it determined that the LSO breached the Applicants’ rights to procedural fairness by voiding their registrations in the licensing process without having held a hearing. In making this determination, the Divisional Court applied the five non-exhaustive factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27.

[29] The Divisional Court began by considering together the first two Baker factors, under the heading “Statutory context and whether the process followed a judicial model”. While the Divisional Court agreed with the LSO that the process the LSO followed was not quasi-judicial, it concluded that it should have been.

[30] In reaching this conclusion, the Divisional Court referred to s. 27(4) of the LSA, which requires that a hearing be held before an application for a licence is refused because the applicant is not of good character. In its view, this provision supported the Applicants’ entitlement to a hearing before the LSO was authorized to void their registrations in the licensing process.

[31] The Divisional Court gave two reasons for accepting the Applicants’ contention that the LSO voided their registrations because of concerns about their good character. First, in External Counsel’s initial letter to the Identified Candidates (which included the Applicants), he stated “the LSO has authorized an investigation into your character pursuant to s. 27(2) of the [LSA] and [B]y-law 4”. And, in the Licensing Department letter dated July 14, 2022, the Director explained that By-law 4 “provides that a licensing applicant’s good character is one of the requirements for the issuance of a licence under the [LSA]”. Further, at the conclusion of this letter, the Director stated that, among other outcomes, the LSO was considering referring the candidate’s application to the Hearing Division of the Law Society Tribunal for a hearing into whether they are of good character under s. 27(4).

[32] Second, the LSO relied on two provisions of By-law 4, both of which authorize it to take steps in response to a “false or misleading representation or declaration”.

[33] The Divisional Court concluded: “[W]hen the LSO seeks to cancel a candidate’s registration due to a false or misleading representation after they have completed their exams, the LSO has effectively refused to licence them due to concerns about their good character. As such, s. 27(4) of the [LSA] requires a hearing.”

[34] The Divisional Court said that requiring a hearing was consistent with the general principles of procedural fairness articulated in Khan v. University of Ottawa (1997), 1997 CanLII 941 (ON CA), 34 O.R. (3d) 535 (C.A.). In Khan, this court found that a student who had been given a failing grade on a law school exam had been denied procedural fairness because the examinations committee had judged the student’s credibility adversely without affording her an in-person hearing. Similarly, the Divisional Court wrote, the Applicants were entitled to a hearing if the LSO intended to impose punitive consequences such as voiding their registration and imposing what it termed a “regulatory sanction”. This could only be done after a finding of advertent misconduct.

[35] The third Baker factor requires a consideration of the importance of the decision to the affected individual. The Divisional Court found that the Decision was important to the Applicants because of its wide-ranging consequences. The voiding of the Applicants’ registrations meant that, with one exception, the Applicants were required to wait a year before re‑registering, at which point they would have to repeat their experiential training (articles or the Law Practice Program) and rewrite their exams, including any that were successfully completed before November 2021. The consequences also included the requirement that the Applicants disclose they had been disciplined by a regulatory body in any re‑registration application and that the LSO had reserved the right to conduct a further investigation into each Applicant’s good character. The Divisional Court described these consequences as causing the Applicants to suffer “a permanent stain on their reputation[s]”. The substantial and wide-ranging consequences to the Applicants weighed in favour of a high level of procedural fairness.

[36] The Divisional Court said that the fourth Baker factor asks whether the Applicants had a legitimate expectation they would receive an oral hearing once the LSO was considering the wide-ranging and punitive consequences it ultimately ordered. The Divisional Court found that they did.

[37] The fifth Baker factor considers the procedure adopted by the decision-maker. The Divisional Court rejected the LSO submission that it adopted an administrative procedure that did not include a hearing because it was untenable for it to conduct 150 quasi-judicial hearings in respect of suspected compromised exam results. The LSO relied on Michalski v. McMaster University, 2022 ONSC 2625, 470 D.L.R. (4th) 582 (Div. Ct.) in support of this submission. In Michalski, the Divisional Court endorsed the university’s streamlined process of considering written submissions to decide requests for vaccination exemptions.

[38] The Divisional Court distinguished Michalski from the Applications on the basis that Michalski did not involve an assessment of the applicant’s academic honesty nor did it implicate the applicant’s reputation. Further, the decision in Michalski involved the university’s process for considering vaccination exemption requests in the context of an imminent return to in-person learning. This meant the university was operating under strict time constraints in the midst of the global pandemic. The Divisional Court saw these institutional constraints as an important consideration when evaluating the in-writing procedure the university had developed.

[39] By contrast, the Divisional Court wrote, the Applicants’ academic honesty was central to the issues before the LSO because the Applicants had been found to have engaged in “prohibited actions” including “licensing dishonesty” and were required to disclose the outcome as a sanction imposed by a regulatory body. While the LSO faced an administrative challenge, the Divisional Court found that challenge could not override the Appellants’ fundamental right to procedural fairness.

[40] The Divisional Court then considered the appropriate remedy. It noted the Applicants’ request: for an order quashing the Decision and restoring their licensing examination results; an order prohibiting the LSO from initiating good character hearings in respect of the issues in the Applications; and, that the matter not be remitted to the LSO because the LSO’s conduct in breaching its home statute and delaying the good character hearings was so egregious as to amount to an abuse of process.

[41] The Divisional Court found the LSO’s conduct of the matter as a whole did not amount to an abuse of process that would justify an order prohibiting it from conducting good character hearings. It quashed that part of the Decision voiding the Applicants’ registration in the licensing process, including the voiding of the Applicants’ successful completion of any licensing exam and any experiential training or exemption from that requirement (the “Registration Decision”). However, it upheld that part of the Decision deeming void the compromised exam results and the requirement that such exams be rewritten. It ordered the LSO to advise the legal regulators across Canada of its decision quashing the Registration Decision. The Divisional Court then remitted the matters to the LSO to be reconsidered in accordance with its reasons.

[42] The Divisional Court concluded by making the Costs Orders. It found the Applicants had been largely successful and ordered the LSO to pay each Applicant costs of the Application of $7,500 all-inclusive, with the exception of the self‑represented Applicant who did not file a costs outline and was awarded costs of $1,000 all-inclusive.

V. The Issues

[43] The LSO submits that the Divisional Court erred: (1) in concluding that the process it adopted in voiding the Applicants’ registrations in the licensing process was unfair; and (2) by deciding costs without allowing the parties to make submissions.

[44] The LSO also brought a motion to adduce fresh evidence relating to the Divisional Court’s failure to permit costs submissions (the “Motion”). I will address the Motion before analyzing the Issues.

VI. The Fresh/New Evidence Motion

The Proposed Fresh Evidence

[45] In the Motion, the LSO seeks to adduce the affidavit evidence of David LeMesurier, co-counsel for the LSO on the Applications. His evidence can be summarized as follows.

[46] In advance of the hearing of the Applications, the LSO uploaded a costs outline to Caselines, as did the Applicants represented by counsel. The LSO’s partial indemnity costs were $45,061.09, including HST, plus a disbursement of $27,424.10 that was paid to an expert witness for a report filed in response to the Applicants’ unsuccessful motion to introduce supplementary evidence. Nineteen of the twenty Applicants were represented by four different lawyers and one Applicant was self-represented. Each of the four counsel had filed cost outlines with partial indemnity costs ranging from approximately $16,000 to approximately $72,000.

[47] When oral argument on the Applications was concluded on October 5, 2023, the Divisional Court took the matters under reserve. The panel did not seek costs submissions and none were made at that time or before the Divisional Court released its reasons, which included the Costs Orders.

[48] Several weeks before the oral hearing of the Applications, counsel for the LSO wrote to the lawyers for most of the Applicants and to the self-represented Applicant to propose resolutions of the Applications. The proposed resolution terms varied for each Applicant, depending on their individual circumstances. Their essence was that the Applicants could write the licensing examinations in November 2023 and would be similarly situated in the licensing process. So, for example, if an Applicant had completed articles, they would not need to repeat their articles if the Applicant provided a letter of reference from a lawyer or judge and completed a brief course on professional conduct. None of the Applicants accepted the LSO proposed resolutions.

[49] When counsel for the LSO received the Divisional Court’s reasons, which included the Costs Orders, he wrote to the Registrar of the Divisional Court asking her to advise the panel that he sought leave to make submissions on costs. The Registrar responded the following day to advise that the Panel would not entertain submissions and its Costs Orders remained “as written” with “costs payable by the LSO to the [A]pplicants of $7,500 each”. It added that where counsel represented multiple Applicants, “the costs award in respect to that counsel’s work will be $7,500 per [A]pplicant.”

The Test for Admission of Fresh/New Evidence on Appeal

[50] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal where the evidence: (1) could not, by the exercise of due diligence, have been available at the first instance hearing; (2) is relevant, in that it bears on a decisive or potentially decisive issue; (3) is credible, in the sense that it is reasonably capable of belief; (4) if believed, could have affected the result below: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 29, applying Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.

[51] The same test applies to evidence tendered on appeal in both civil and criminal cases: Barendregt, at para. 34. However, the first criterion will not be applied as strictly in criminal cases: Barendregt, at para. 29.

The Test Applied

[52] I begin by noting that the proposed evidence is “new”, rather than “fresh”. I do so because the evidence relating to the Divisional Court’s handling of costs submissions occurred after the Applications were heard. In Barendregt, at para. 48, the Supreme Court distinguishes “new” evidence from “fresh” evidence based on when the facts arose. Evidence is “new” if it pertains to facts that occurred after the first instance hearing was concluded whereas evidence is “fresh” when it pertains to facts that occurred before the first instance hearing. The Palmer test for admission applies to both new and fresh evidence, however, the application of the criteria differs somewhat depending on whether the proposed evidence is new or fresh: Barendregt, at paras. 53-57.

[53] In terms of the first criterion, because the proposed evidence arose after the hearing of the Applications, the question is whether the LSO could – with due diligence – have acted in a way that would have rendered the evidence available on the Applications: Barendregt, at para. 59. Proposed resolutions are akin to settlement offers. Accordingly, the LSO could not have adduced evidence of its proposed resolutions before the hearing of the Applications had been concluded and the Divisional Court had rendered its decision. The LSO acted promptly on receiving the Divisional Court reasons, by writing to the Registrar of the Court and asking that the parties be permitted to make costs submissions – which would have included the fact of the proposed resolutions – before the Divisional Court was functus officio. Thus, the first criterion is satisfied.

[54] Self-evidently, the second, third, and fourth criteria are satisfied, as the new evidence:

i. is relevant - because it bears on the costs issue and the validity of the process the Divisional Court followed in making the Costs Orders;

ii. is credible – as it was sworn by co-counsel for the LSO on the Applications and is reasonably capable of belief; and

iii. if believed, could have affected the Costs Orders.

[55] Accordingly, I would grant the Motion and admit the new evidence.

VII. The Standard of Review

[56] On an appeal from a decision of the Divisional Court on a judicial review application, this court must determine whether the Divisional Court identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 36.

[57] In this case, the Divisional Court was required to review the two component parts of the Decision: (1) to deem void the Applicants’ November 2021 exam results; and (2) to deem void the Applicants’ registrations in the LSO licensing process. Recall that the term Registration Decision refers to not only the second part of the Decision but also the consequences that flow from the voiding of the Applicants’ registrations.

[58] The Divisional Court reviewed the first part of the Decision on a reasonableness standard. No appeal has been taken from the Divisional Court’s determination that the decision to void the Applicants’ November 2021 exam results was reasonable and did not violate procedural fairness so nothing more needs to be said in respect of it.

[59] What standard of review did the Divisional Court apply when reviewing the Registration Decision? There are two possible standards of review: reasonableness and correctness. The Divisional Court specifically rejected the possibility that the reasonableness standard applies when reviewing a decision on the grounds of alleged breaches of procedural fairness. However, it did not state that the correctness standard applied. Rather, the Divisional Court reviewed the Registration Decision by considering whether the process the LSO followed in making that decision was procedurally fair, with specific reliance on the factors articulated in Baker. In my view, the Divisional Court’s approach was correct.

[60] The Divisional Court correctly rejected the reasonableness standard of review in respect of the Registration Decision because the challenge to its validity was based on alleged breaches of procedural fairness. While there are cases in which the “correctness” standard of review has been held to apply on a judicial review for procedural fairness,[^4] the use of the correctness approach can be awkward and confusing in such a context. In this regard, I note two things. First, the Supreme Court did not address the standard of review for procedural fairness in either Baker or Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, see para. 23. And, at para. 74 of Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, the Supreme Court states that procedural fairness requires no assessment of the appropriate standard of judicial review. Rather, evaluating whether the duty of procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation. Second, where procedural fairness is at issue, the question is not whether the substance of the decision was correct or reasonable but, rather, whether the decision-making procedure was fair having regard to all of the circumstances: see Halsbury’s Laws of Canada, “Administrative Law”, (Toronto: LexisNexis Canada, 2022 Reissue), at HAD-87. That is precisely the approach the Divisional Court took in reviewing the Registration Decision and, as I have already indicated, in my view it is the correct approach.

[61] Having found that the Divisional Court correctly identified the appropriate approach for reviewing the Registration Decision, it falls to this court to “step into the shoes” of the Divisional Court and see whether it correctly applied the Baker factors: Agraira, at para. 46; Mason, at para. 36. In this regard, this court owes no deference to the decision of the Divisional Court: Mason, at para. 36; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107, at para. 10; Ball v. McAulay, 2020 ONCA 481, 452 D.L.R. (4th) 213, at para. 5.

VIII. Analysis

ISSUE #1 No unfairness in voiding the Applicants’ registrations

[62] The Divisional Court concluded that the LSO breached the Applicants’ right to procedural fairness when it cancelled their registrations in the licencing process without having held an oral hearing. It applied the Baker factors to reach this conclusion. In my view, the court erred in its application of those factors and wrongly concluded that the LSO had breached its duty of procedural fairness.

[63] At paras. 23-27 of Baker, the Supreme Court set out the following list of non‑exhaustive factors as relevant to determining what the common law duty of procedural fairness requires in a given set of circumstances:

i. the nature of the decision being made and the process followed in making it;

ii. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

iii. the importance of the decision to the affected individual(s);

iv. the legitimate expectations of the person challenging the decision; and

v. the choices of procedure made by the decision-maker, particularly where the statute leaves to the decision-maker the ability to choose its own procedure.

The first factor – the nature of the decision being made

[64] The Divisional Court considered the first and second factors together and concluded that the process the LSO followed in making the Registration Decision was not quasi-judicial but should have been. The reasoning behind its conclusion can be summarized as follows. The Registration Decision was driven by the LSO’s concern about the good character of the Applicants and, where the LSO does not accept that a candidate is of good character, a hearing must be held pursuant to s. 27(4) of the LSA. In my view, the Divisional Court erred in principle in its application of the first and second factors in so concluding: a quasi-judicial process did not need to be followed in the making of the Registration Decision nor was an oral hearing required.

[65] The first factor requires the reviewing court to consider the nature of the impugned decision – in this case, the Registration Decision – and the process followed in making it. At para. 23 of Baker, the Supreme Court explains that the administrative decision-making process should be looked at to see how much it resembles the judicial process:

The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.

[66] The Registration Decision was made by the Director of the Licensing Department pursuant to ss. 14(2) and 18(2) of By-law 4, and s. 13 of the Licensing Process Policies of the LSO. A consideration of these provisions shows that the decisions made were administrative in nature and there is no specified process to be followed in making decisions under them.

[67] It will be recalled that By-law 4 is the licensing by-law. It establishes the general requirements for: the issuance of any licence under the LSA; licensing examinations; and registration in the licensing process. Section 8(1) of By-law 4 stipulates that an applicant for the issuance of any such license “must be of good character”.

[68] Section 14 of By-law 4 governs licensing examinations. Section 14(2) provides that a person who makes any false or misleading representation or declaration in connection with an examination application is deemed to not meet the requirements for taking a licensing examination and “the successful completion of any licensing examination taken by the person is deemed thereafter to be void”.

[69] Section 18 of By-law 4 governs registration with the LSO. Section 18(2) addresses the consequences for a person who makes any false or misleading representation or declaration in connection with registration: they are deemed to not meet the requirements for registration; their registration is deemed void; the successful completion of any licensing examination they have taken is deemed to be void; successful completion of any professional conduct course conducted by the LSO is deemed to be void; and any service under articles of clerkship is also deemed to be void.

[70] While the Director also relied on Part XIII of the LSO Licensing Process Policies in making the Registration Decision, it offers little assistance in analyzing the first factor. However, for the sake of completeness, its provisions are included in Schedule A.

[71] The Licensing Department serves an administrative function in fulfilling the LSO’s obligation to maintain the integrity of the licensing regime. The legislative provisions that govern licensing examinations and registration do not establish a process the Licensing Department is to follow when making its decisions. Put another way, the licensing provisions provide no procedural protections akin to the trial model. Accordingly, the Director was not engaged in a quasi-judicial process nor was he required to hold an oral hearing before he made the Registration Decision.

[72] In concluding otherwise, the Divisional Court found that the Registration Decision was made because of concerns about the Applicants’ good character. While good character is a general requirement for the issuance of any licence under the LSA (see s. 8(1)2 of By-law 4), that does not mean that the Registration Decision was made as a result of concerns about good character. The record does not support such a finding. As I explain in my analysis of factors 2 and 5, below, that finding on the part of the Divisional Court is based on a misunderstanding of the nature of the statutory scheme and the conflation of the functions of the Professional Regulation Division with those of the Licensing Department.

The second factor – the nature of the statutory scheme pursuant to which the body operates

[73] The second factor requires the reviewing court to consider the nature of the statutory scheme and the terms under which the Licensing Department operates. At para. 24 of Baker, the Supreme Court explains that the role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. In other words, while the focus of the first factor is on the impugned decision and the process followed in making it, the second factor requires the reviewing court to consider the broader statutory context within which the Licensing Department operates and the Registration Decision was made.

[74] Section 1(3) of the LSA stipulates that a hearing is not required before any decision is made under it “unless the [LSA], regulations, by-laws or rules of practice and procedure specifically require a hearing”. There is nothing in the LSA, regulations, by-laws or rules of practice and procedure that requires a hearing to be held before a decision is made under By-law 4 or the Licensing Process Policies.

[75] Section 27 of the LSA requires that an oral hearing be conducted in a very specific circumstance. Read together, ss. 27(2) and (4) provide that an application for a licence may be refused on good character grounds only after a hearing by the Hearing Division, on referral by the LSO to the Law Society Tribunal.

[76] When the LSO learned that the integrity of the November 2021 exams was compromised, it called on two different departments to respond to different issues arising from the incident. It asked the Licensing Department to address the threat posed to the integrity of those licensing examinations. It asked the Professional Regulation Division to investigate possible ethical concerns; this led to the retention of External Counsel and commencement of the Investigation (together the “Investigative Team”).

[77] The Licensing Department began by reviewing the November 2021 exams. Thereafter, it retained Caveon to perform a statistical analysis of the examinations to identify potential instances of cheating, collusion and/or fraud.

[78] All communications between the Licensing Department and the Applicants were conducted in writing. The Licensing Department communications made clear the distinctions between it and the Investigative Team. So, for example, when those communications referred to the Applicant’s character they did so by reference to the parts of By-law 4 which require a licensing candidate to be of good character, and open and honest with the LSO throughout the licensing process. The provisions of By-law 4 and the Licensing Process Policies under which the Licensing Department ultimately made its Decision do not require a finding of intentional misconduct nor determinations regarding the Applicants’ character. The Licensing Department did not address the Applicants’ good character generally nor call it into question. Its role, duties, actions, and decisions were all directed at licensing examinations and registration. In contrast, the role of the Investigative Team was to investigate ethical concerns arising from the November 2021 exams, including investigating the character of the Applicants generally.

[79] In the Licensing Department’s communications to the Applicants, it disclosed the information on which it was relying when determining how to proceed under By-law 4. It advised that, based on the Caveon report and in consultation with the Investigative Team, it had determined that the evidence supported the conclusion that the Applicants had breached the applicable licensing rules by engaging in prohibited actions regarding the November 2021 exams. Those communications also set out the actions before, during, or after a licensing examination that the Applicant appeared to have breached and advised them of the outcomes it was considering, namely, voiding the Applicant’s November 2021 exam results and deeming void the Applicant’s registration in the licensing process.

[80] Through its communications to the Applicants, the Licensing Department made clear that its role was to deal with licensing and registration matters, and that its processes and decisions were separate and distinct from those of the Investigative Team. It identified the evidence on which it was acting, including that from Caveon and the Investigative Team. Those communications did not indicate that the Licensing Department had considered the Applicants’ good character or that it would in the future. On the contrary, the communications made it abundantly clear that the issue of the Applicants’ good character was the purview of the Professional Regulation Division and that, ultimately, the LSO might refer their applications to the Law Society Tribunal for a hearing under s. 27(4) of the LSA, which would be a separate outcome from the Licensing Department’s Decision.

[81] The references to good character in the Licensing Department’s communications to the Applicants were explicitly grounded in By-law 4’s terms. Its references to s. 27(4) of the LSA was limited to advising the Applicants that, should they re-register, the LSO could yet refer their applications for a hearing under it. The work of the Licensing Department could not have engaged s. 27(4) because s. 27(4) deals with refused entry to the profession, not licensing and registration. There can be no misunderstanding on this point because the Licensing Department communications made explicit the steps the Applicants had to take to re-register for licensure.

[82] The Divisional Court misconstrued the statutory scheme and the evidence in finding that the Licensing Department made the Registration Decision based on concerns about the Applicants’ good character. It did not. It found that the Applicants had engaged in “prohibited actions” as defined in the licensing Rules and Protocols relating to licensing exams in place when the Applicants wrote the November 2021 exams. One such prohibited action was obtaining or using licensing examination questions or answers from any other candidate, potential candidate, entity or person, before, during or after a licensing examination.

[83] The second factor requires the reviewing court to consider the role of the Licensing Department within the broader statutory scheme to help determine the content of the duty of fairness owed when a particular administrative decision is made. That consideration leads inexorably to the conclusion that oral hearings did not need to be held before the Licensing Department made the Registration Decision, a conclusion which is consistent with the dictates of s. 1(3) of the LSA. Oral hearings are required by the LSA only in very specific situations, such as the refusal to grant a licence based on good character. That situation is far removed from the work of the Licensing Department and the Registration Decision it made pursuant to By-law 4.

The third factor – the importance of the decision to the affected individual

[84] The Divisional Court found that the Decision was important to the Applicants because, among other things, they had “suffered a permanent stain on their reputation[s]”.

[85] There is no doubt that the Decision was important to the Applicants, a matter which the LSO does not dispute. However, the LSO disputes the Divisional Court finding that the Applicants suffered a permanent stain on their reputations as a result of its actions. It points out that when conducting its regulatory work, nothing the LSO does is a matter of public record. Further, when the LSO shared information about this matter with other bodies in Canada responsible for the regulation of lawyers, those bodies were required to protect the non‑public nature of the information. Thus, the LSO argues, it was only because the Applicants started the Applications that their involvement became public.

[86] It does appear that the Divisional Court misunderstood how the Applicants’ involvement in this matter became public knowledge and, thus, a “permanent stain on their reputation[s]”. However, even if it made a palpable error in that regard, it is not overriding. An error is overriding if it has “affected the result”: Hydro-Quebec v. Matta, 2020 SCC 37, [2020] 3 S.C.R. 595, at para. 33, citing H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56, 69-70; Konstan v. Berkovits, 2024 ONCA 510.

[87] Removal of the consideration of how this information came to be known about the Applicants would not change the Divisional Court’s finding that the Registration Decision was of great importance to the Applicants. Apart entirely from the reference to causing a stain the Applicants’ reputations, the Divisional Court based its finding on a consideration of the other wide-ranging consequences of the Registration Decision, such as the requirement that the Applicants had to wait a year to re-register, repeat their experiential training (their articles or the Law Practice Program), and disclose the outcome in any re-registration application anywhere in Canada.

[88] Consequently, I share the view of the Divisional Court that the Registration Decision was important to the Applicants.

The fourth factor – the Applicants’ expectations

[89] The Divisional Court gave brief reasons on this factor: because of the provisions of the LSA and By-law 4, the Applicants had a “legitimate expectation that they would receive an oral hearing”, given the wide-ranging and punitive consequences the LSO ultimately imposed. In my view, the Divisional Court erred in principle in so finding.

[90] As the Supreme Court makes clear at para. 26 of Baker, the fourth factor requires the reviewing court to determine whether the Licensing Department, as the administrative decision-maker, made promises of an oral hearing or followed a regular practice of holding such hearings because it would “generally be unfair” to act in contravention of representations or substantive promises.

[91] There is nothing in the record to suggest that the Licensing Department made promises of an oral hearing or that its regular practices involve such hearings. Indeed, the evidence is to the contrary. The Director’s decision letter dated August 31, 2022, told the Applicants it was imposing the two principal administrative outcomes specified in By-law 4: voiding the Applicants’ November 2021 exam results and deeming void their registration in the licensing process. It gave the Applicants the opportunity to make written submissions on those possible outcomes.

[92] There was no evidence – or even suggestion – that the Licensing Department has a practice of holding oral hearings before rendering decisions. And the Licensing Department made no promise of an oral hearing. The only mention of an oral hearing in the decision letter was to advise the Applicants that if they re‑registered, the LSO might conduct a further good character investigation and refer their application to the Law Society Tribunal pursuant to s. 27(4) of the LSA. As discussed above, such a hearing is unrelated to the work of the Licensing Department.

[93] In sum, there is no legislative obligation on the part of the Licensing Department to hold hearings when carrying out its functions. It made no promises of an oral hearing and it had no practice of holdings such hearings. In these circumstances, the Applicants could have no “legitimate expectation” they would receive an oral hearing, as the Divisional Court found.

The fifth factor – the choices of procedure the Licensing Department adopted

[94] At para. 27 of Baker, the Supreme Court states that an analysis of procedural fairness should “take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures”.

[95] The Licensing Department administers thousands of licensing exams every year. The LSA does not give candidates the right to a hearing in respect of decisions made under By-law 4. Under its governing legislative provisions, the Licensing Department was empowered to develop an effective process for individually assessing the 150 candidates whose November 2021 exam results had been recommended for invalidation by Caveon.

[96] The Divisional Court recognized the LSO faced an administrative challenge but said that task could not override the Applicants’ rights to procedural fairness. In my view, this conclusory statement gave inadequate consideration to the institutional constraints the LSO faced.

[97] In any event, however, the Divisional Court failed to engage in the analysis required by the fifth Baker factor before concluding that the Applicants’ rights to procedural fairness had been breached.

[98] The fifth factor requires the reviewing court to identify the procedures the Licensing Department took in reaching its Decision and, with due respect for the fact that the legislation gives the Licensing Department the ability to choose its own procedures, consider whether the procedures it followed respected the duty of fairness. The Divisional Court erred in principle in failing to do this.

[99] Thus, I begin by considering the procedures the Licensing Department followed before making its Decision. It gave the Applicants full disclosure of the information the LSO had on this matter. They were given a copy of the Caveon report, told why Caveon recommended invalidation of their results, and informed that the Licensing Department had reviewed material obtained in the Investigation. Each Applicant was also told of the evidence obtained in the Investigation specific to the Applicant, including evidence specific to their connection with NEG. The Applicants were twice afforded the opportunity to make written submissions to the Director before he made the Decision. They were then given the opportunity to make further submissions. As well, they were afforded the opportunity of having the Decision reviewed by the Executive Director, who modified it in the Applicants’ favour by shortening the disqualification period.

[100] In short, the Applicants were given disclosure, made aware of the allegations against them, had repeated opportunities to respond through written submissions to the allegations, given the opportunity to make written submissions about the proposed administrative consequences, and availed themselves of the opportunity for an internal review of the Decision by the Executive Director.

[101] In my view, when considered in the factual and legislative context, the procedures the Licensing Department followed satisfied the Applicants’ right to procedural fairness.

Conclusion

[102] The LSO has a duty to protect the public interest, maintain public confidence in the profession, and ensure the entry-level competence of incoming licensees. It is to be afforded considerable latitude in regulating the legal profession and in determining how the duty to protect the public interest can best be furthered in the context of a particular discretionary decision: Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 18.

[103] To fulfill these duties, when the LSO learned the integrity of the November 2021 exams was compromised, it called on two departments to respond: the Licensing Department and the Professional Regulation Division. The Licensing Department was tasked with determining how to deal with the threat posed to the integrity of the licensing examinations and licensure process. The Professional Regulation Division investigated possible ethical concerns.

[104] The Licensing Department and the Professional Regulation Division not only perform different functions, they are governed by different legislative provisions. They played different roles in responding to the November 2021 exam incident. While the groups spoke to one another and shared information, the procedural fairness considerations that govern the two are different. The fact that the two groups were working simultaneously and shared information does not mean that their processes merged. Nor does it mean that the same procedural fairness considerations apply to them.

[105] The Divisional Court misconstrued the statutory scheme by conflating the work of the Licensing Department with that of the Professional Regulation Division: the former was responsible for licensing decisions – the effect on licensing examinations and the effect on the candidate’s position in the licensure process. The Licensing Department’s Decision was made pursuant to By-law 4, which governs licensing. The LSA does not require that a hearing be held before a decision is made under By-law 4. The absence of procedural dictates in By-law 4 is usefully contrasted with s. 27 of the LSA which dictates that an application for a licence may be refused only after a hearing by the Hearing Division.

[106] When the legislative and factual circumstances in this case are considered in accordance with the Baker factors, the LSO did not breach the Applicants’ right to procedural fairness in making the Registration Decision. Accordingly, I would dismiss the Applications.

ISSUE #2 Procedural unfairness in making the Costs Orders

[107] Because I have concluded the Applications should be dismissed, I would set aside the Costs Orders. In their place, I would order costs of the Applications in favour of the LSO as the successful party. For the same reason, I need not address the LSO’s contention that the Divisional Court erred in awarding costs to the Applicants on the basis they were largely successful on the Applications. In making this contention, the LSO points to the Divisional Court’s dismissal of the Applicants’ motions to file supplementary evidence on the Applications; its denial of the Applicants’ requests for orders requiring the LSO to issue licences that would allow them to practise law without writing further exams; and its refusal to issue orders enjoining the LSO from initiating good character hearings. The LSO maintains that when the relief the Applicants sought is compared to the results they achieved on the Applications, the Applicants had not been largely successful.

[108] While not strictly necessary, I will address the LSO’s submission that the Divisional Court’s failure to hear the parties on costs was a procedural error. In my view, it was.

[109] Procedural fairness dictates that an affected party has the right to be heard: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 683. Because costs orders affect the parties, as a general proposition, they should be heard on that matter. In this case, had the Divisional Court given the parties an opportunity to make costs submissions, the LSO could have made its submissions relating to the degree of success the Applicants had achieved on the Applications. Furthermore, it could have provided the Divisional Court with information on its resolution offers. Both of these matters are relevant considerations that the Divisional Court should have taken into account when deciding costs of the Applications.

[110] I recognize that the parties filed bills of costs before the hearing but that is not tantamount to them having had the opportunity to make costs submissions. This is evident as neither of the points raised in the foregoing paragraph were – or could have been – reflected in the LSO’s bill of costs.

[111] Accordingly, in my view, denying the parties an opportunity to make costs submissions was a breach of procedural fairness.

IX. Disposition

[112] For these reasons, I would:

i. allow the appeal;

ii. quash the Orders;

iii. substitute orders dismissing each of the Applications;

iv. grant the Motion;

v. order costs of the Motion and the appeal to the LSO, payable severally by each Applicant in the amount of $1200, all inclusive; and

vi. order costs of the Applications to the LSO payable severally by each Applicant in the amount of $2,000, all inclusive.

Released: April 7, 2025 “E.E.G.”

“E.E. Gillese J.A.”

“I agree. L.B. Roberts J.A.”

“I agree. Coroza J.A.”

Schedule A

Law Society Act, RSO 1990, c. L.8

1(3) A hearing is not required before making any decision under this Act, the regulations, the by-laws or the rules of practice and procedure unless the Act, regulations, by-laws or rules of practice and procedure specifically require a hearing.

4.1 It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

27(2) It is a requirement for the issuance of every licence under this Act that the applicant be of good character.

(3) If a person who applies to the Society for a class of licence in accordance with the by-laws meets the qualifications and other requirements set out in this Act and the by-laws for the issuance of that class of licence, the Society shall issue a licence of that class to the applicant.

(4) An application for a licence may be refused only after a hearing by the Hearing Division, on referral of the matter by the Society to the Tribunal.

62(0.1) Convocation may make by-laws

4.1 governing the licensing of persons to practise law in Ontario as barristers and solicitors and the licensing of persons to provide legal services in Ontario, including prescribing the qualifications and other requirements for the various classes of licence and governing applications for a licence.

Law Society of Ontario, By-Law 4, Licensing

Requirements for issuance of any licence

8.(1) The following are the requirements for the issuance of any licence under the Act:

1. The applicant must submit to the Society a completed application, for the class of licence for which application is made, in a form provided by the Society.

2. The applicant must pay the applicable fees, including the applicable application fee.

3. The applicant must be of good character.

4. The applicant must take the applicable oath.

5. The applicant must provide to the Society all documents and information, as may be required by the Society, relating to any licensing requirement.

(2) An applicant who makes any false or misleading representation or declaration on or in connection with an application for a licence, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for the issuance of any licence under the Act.

(3) An applicant shall provide to the Society,

(a) at the time she or he submits her or his completed application, all documents and information specified by the Society on the application form relating to the requirement that the applicant be of good character; and

(b) by the time specified by the Society, all additional documents and information specified by the Society relating to the requirement that the applicant be of good character.

Licensing Examinations

14. (1) A person who meets the following requirements is entitled to take a licensing examination set by the Society:

15. The person must be registered with the Society.

1.1. The person must not have taken the same licensing examination more than twice in the licensing cycle into which the person was registered.

2. The person must submit to the Society a completed examination application, for the examination that the person wishes to take, in a form provided by the Society, prior to the day of the examination, by the time specified by the Society.

3. The person must pay the applicable examination fee, prior to the day of the examination, by the time specified by the Society.

4. The person must provide to the Society all documents and information, as may be required by the Society, relating to any requirement for taking an examination.

5. The person must not be ineligible to take the examination under this By-Law.

(2) A person who makes any false or misleading representation or declaration on or in connection with an examination application, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for taking a licensing examination and, subject to subsection (3), the successful completion of any licensing examination taken by the person is deemed thereafter to be void.

Registration

18. (1) A person who meets the following requirements is entitled to be registered with the Society:

19. The person must submit to the Society a completed registration form, as provided by the Society.

20. The person must pay the applicable registration fee.

21. The person must provide to the Society all documents and information, as may be required by the Society, relating to any registration requirement.

(2) A person who makes any false or misleading representation or declaration on or in connection with registration, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for registration, the person’s registration is deemed thereafter to be void, the successful completion of any licensing examination taken by the person is deemed thereafter to be void, the successful completion of any professional conduct course conducted by the Society taken by the person is deemed thereafter to be void and any service under articles of clerkship is deemed thereafter to be void.

Law Society of Ontario, Licensing Process Policies, Part XIII

Removal

13.1. The Society will remove a Candidate from the Licensing Process where:

a. an order has been made pursuant to section 27 of the Law Society Act refusing the Candidate’s application for a Class L1 Licence;

b. an order has been made pursuant to section 35 of the Law Society Act removing the Candidate from the Licensing Process;

c. the Candidate fails to provide any document required to be provided pursuant to By-Law 4 made under the Law Society Act;

d. the Candidate cannot obtain a Bachelor of Laws degree or Juris Doctor degree from a law school that is at the time that the Candidate graduates from the law school an Accredited Law School or a certificate of qualification from the NCA by the time specified by the Society;

e. the Candidate has not completed the required components of the Licensing Process during the Candidate’s Licensing Term or such later date as may be established by the Director, Licensing and Accreditation;

f. the Candidate has failed to pass the Licensing Examinations during the Candidate’s Licensing Term; or

g. the Candidate has made any false or misleading representation or declaration on or in connection with submission of their Application, by commission or omission, contrary to subsection 18(2) of By-Law 4.

13.2. A Candidate who is removed or has withdrawn from the Licensing Process or who has deemed to have abandoned their Application will cease to be a Candidate in the Licensing Process.

13.3. A Candidate who is removed from the Licensing Process will not retain credit for standings of pass achieved by the Candidate for the Licensing Examinations, but will retain credit for completion of the Experiential Training Program.

13.4. Notwithstanding section 13.3, a Candidate who is removed from the Licensing Process for the reasons contained in subsections 13.1(c), 13.1(d), or 13.1(g) will not retain credit for completion of the Experiential Training Program.

[^1]: In the case of one Applicant, while her exam result was deemed void, her registration in the licensing process was unaffected and she could re-apply to re-write the exam immediately.

[^2]: In the case of one candidate, while her exam result was deemed void, her registration in the licensing process was unaffected and she could apply to rewrite the exam immediately.

[^3]: Applicant Korede Afolabi did not submit a request for review or extension within the 15-day timeframe and his request for an extension of the deadline for a request to review was denied by the Executive Director on December 6, 2022.

[^4]: See, for example, Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 FCR 271, at para. 35, leave to appeal refused, [2021] S.C.C.A. No. 6.