CITATION: Mundulai v. Law Society of Upper Canada, 2014 ONSC 7208
DIVISIONAL COURT FILE NO.: 229/13
DATE: 20141211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HORKINS AND D. M. BROWN JJ.
BETWEEN:
ALIAMISSE OMAR MUNDULAI
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
Glenroy K. Bastien, for the Appellant
Deborah A. McPhadden, for the Respondent
HEARD at Toronto: December 12, 2014
SACHS J. (orally)
[1] The appellant is a lawyer who overcame very difficult personal circumstances to earn a law degree. Once he entered the profession, he, like so many young lawyers these days, was unable to find a situation where he had the opportunity to be trained and mentored by a senior member of the bar. Almost from the time of his call to the bar things started to go wrong. Matters escalated and just six years after his call to the bar his licence to practice law was revoked. Within this scenario, albeit at the eleventh hour, an offer to supervise the appellant was made. The question that troubled this court was whether, before revoking the appellant’s licence, thereby ending his career, he should have first been given the opportunity to practise his profession with the benefit of supervision.
[2] In answering this question we have had to remind ourselves what our function is today. We are not the panel of first instance who had the opportunity to hear the evidence, including hearing the appellant testify. It is not our task to make credibility findings or reweigh evidence. Further, the decision being appealed is a decision on penalty arrived at by a committee in a self-governing profession. This is a discretionary decision to which a reviewing court must show great deference.
[3] The Supreme Court of Canada has consistently held that the court should not interfere with the disciplinary penalty imposed by self-governing professions. (Pearlman v. Manitoba Law Society, [1991] 2 S.C.R. 869 at p. 888).
[4] The standard of review of such decisions should be reasonableness. This means that, after a somewhat probing examination, the court will ask itself, “Can the reasons, taken as a whole support the decision?” (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17). In this context the decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the Tribunal from the evidence before it to the conclusions at which it arrived. (Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at para. 41).
[5] In this case, the appellant’s licence was revoked after he was found to be ungovernable. Once a lawyer is found to be ungovernable, the protection of the public requires that he or she lose the right to practise their profession. (Law Society of Upper Canada v. Gray, 2011 ONLSHP 156).
[6] On this appeal the appellant did not challenge this principle, nor did he challenge the test of governability that the Hearing Panel and the Appeal Panel employed. Rather, he submitted that both panels either misapprehended or failed to consider relevant evidence.
[7] The first factor to be considered in assessing governability is the nature, duration and repetitive character of the misconduct. According to the appellant, in assessing this factor, the Appeal Panel failed to take into account the difference between the circumstances giving rise to his last finding of professional misconduct and the other three findings of professional misconduct that he has been subject to.
[8] While we recognize that there are differences, it was reasonable for the Hearing Panel and the Appeal Panel to focus on what that misconduct had in common, namely, an inability to respond appropriately to authorities who are authorized to supervise and oversee how he governs himself in his professional life. When the question at issue was governability, this commonality in the conduct at issue was reasonably found to be significant.
[9] With respect to some of the other factors, namely, remorse, character evidence and discipline history, the appellant submitted that the Hearing Panel and the Appeal Panel misapprehended the evidence. As a result, they failed to appreciate that the misconduct in question had arisen at a time in his life when he was experiencing severe stress, that he was genuinely sorry for what he had done, that he had learned his lesson and most importantly, had sought help. In making this submission, the appellant pointed out several sections in the transcript of the hearing where he argues that he told the Hearing Panel how remorseful he was. He also focused on a letter confirming that he had, a week before his hearing, sought assistance for his problems from the Ontario Lawyers Assistance Program.
[10] In reviewing the reasons of the Hearing Panel, it is clear, as the Appeal Panel found, that they considered the evidence on the issues in question. They considered the appellant’s testimony about the stresses he was under in 2009 when the misconduct at issue occurred. However, they also considered the fact that the appellant had a prior history of misconduct that had occurred outside of that time period. This was reasonable given the fact that the appellant was seeking to reassure the panel that he was capable of change and that he had only engaged in misconduct because he was under so much stress in 2009.
[11] The Hearing Panel also considered the appellant’s expressions of remorse and found that in spite of those expressions of remorse, the appellant’s misconduct had been “more or less consistent since his call to the bar in 2005” and that he had “steadfastly maintained in the instant case that he was not obliged to obey court orders because he personally felt a greater duty to his clients”. In other words, the Hearing Panel was not impressed with the appellant’s expressions of remorse and found that rather than being wholehearted, they were qualified. Having reviewed the transcript on this issue, this conclusion was a reasonable one. When asked directly about whether he regretted what he had done, the appellant would state that he did, but then go on and justify his actions in some way.
[12] The Hearing Panel and the Appeal Panel also considered all of the character evidence that the appellant presented and, for reasons that they articulated, put little weight on that evidence.
[13] With respect to the evidence from the Ontario Lawyers Assistance Program, the Hearing Panel found at para. 26 of its decision that:
This evidence might have been more compelling if it showed that Mr. Mundulai had sought out assistance from OLAP earlier than the week before the hearing. As it is, it shows a cynical and manipulative attitude on Mr. Mundulai’s part. The Hearing Panel is accordingly skeptical of this evidence.
[14] Again, it is not our task to reweigh or reassess evidence. Having considered the evidence at hand, the panel was entitled to weigh that evidence and find it wanting. Its conclusions with respect to that evidence were reasonable.
[15] The appellant also submits that the Hearing Panel and the Appeal Panel did not consider the plan of supervision he had proposed. A review of the transcript before the Hearing Panel shows that some plan of supervision was put before the Hearing Panel and that the Hearing Panel was alive to the issue of whether this was the type of misconduct that could be remedied through supervision or not.
[16] It is also clear that the Appeal Panel did consider the appellant’s more detailed plan of supervision that he put before it for the first time. The Appeal Panel reviewed the plan and concluded that it was “not satisfied that the nature and extent of the supervision it contemplates will either prevent or reduce the likelihood of future misconduct of the kind that has been found against the appellant”.
[17] Aside from specific critiques that it had about the particular proposed plan, the Appeal Panel expressed the opinion that effective supervision would be “dependent upon the appellant’s ability to recognize and willingness to disclose his problems and weaknesses”.
[18] On the basis of the evidence before it, the Appeal Panel had no confidence that depending on the appellant’s insight into and willingness to disclose his problems, would adequately or reliably protect the public. Given the record before it, this conclusion was a reasonable one.
[19] Finally, the appellant argued that the Hearing Panel and the Appeal Panel failed to take judicial notice of the fact that lawyers like him who are from a racial minority group are subject to systemic racism. While in no way seeking to dismiss the issues of systemic racism that pervade the administration of justice (which have been the subject of numerous reports including reports from the Law Society) the appellant’s submission in this regard fails for the reason articulated by the Appeal Panel. Namely, the appellant did not present evidence that drew a causal connection between his race and the misconduct of which he was accused. In other words, what is the connection between the appellant’s race and his failure to obey a court order?
[20] As the Appeal Panel pointed out, this distinguishes his case from McSween where there was considerable evidence directed at making the necessary causal link.
[21] For these reasons, the appeal is dismissed.
COSTS
[22] I have endorsed the Record, “This appeal is dismissed for reasons given orally by Sachs J. Because of the difficult circumstances of this case, we find that it is fair and reasonable that there be no order as to costs.”
SACHS J.
HORKINS J.
D. M. BROWN J.
Date of Reasons for Judgment: December 11, 2014
Date of Release: January 13, 2015
CITATION: Mundulai v. Law Society of Upper Canada, 2014 ONSC 7208
DIVISIONAL COURT FILE NO.: 229/13
DATE: 20141211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HORKINS AND D. M. BROWN JJ.
BETWEEN:
ALIAMISSE OMAR MUNDULAI
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: December 11, 2014
Date of Release: January 13, 2015