CITATION: Berger v. Legal Aid Ontario, 2021 ONSC 5776

DIVISIONAL COURT FILE NO. 234/20

DATE: 20210830

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, S.T. Bale and Favreau JJ.

BETWEEN:

Max Berger, Applicant

– and –

Legal Aid Ontario, Respondent

Jordan Goldblatt, Julia Wilkes and Chris Grisdale, for the applicant

Brian Gover and Caitlin Milne, for the respondent

HEARD: February 4, 2021 at Toronto, by video conference

Introduction

[1] This application for judicial review arises from Legal Aid Ontario's decision to remove the applicant, Max Berger, from its immigration and refugee panel. The panel consists of members of the Ontario bar who are permitted to accept legal aid certificates for the provision of immigration and refugee related legal services.

[2] The applicant challenges the removal decision and argues that it was both unreasonable and procedurally unfair. For the reasons that follow, I would dismiss the application.

BACKGROUND

Legislative background

[3] LAO is established by the Legal Aid Services Act, 1998, S.O. 1998, c. 26 (the “Act”). Pursuant to s. 23, LAO area directors may establish panels of lawyers in a specific practice area. Lawyers appointed to those panels are eligible to accept certificates to provide legal aid services.

[4] O. Reg. 106/99 (Administration of System for Providing Legal Aid Services) is a regulation made under the Act (the “Regulation”). Sections 27-37 of the Regulation set out the process for being added to a panel and being removed from a panel. Section 32(1) provides that the president of LAO may remove a lawyer from a panel in three scenarios: (i) where they have reasonable cause to do so; (ii) where the lawyer has been found guilty of professional misconduct or conduct unbecoming; or (iii) where the lawyer has been found guilty of a criminal offence. Where the president decides to remove a lawyer, s. 32(3) requires the lawyer to be given notice and an opportunity for a hearing. LAO’s internal policy for panel removals specifies that a hearing under s. 32 shall be in writing only. Finally, s. 5 of the Regulation allows the president to designate an employee of LAO to exercise any of the president’s powers or duties under the regulation.

Procedural history

[5] On October 20, 2015, LAO notified the applicant that his representation of a legally aided client was under investigation (the “first investigation”). In the letter giving notice, LAO alleged that he had billed for hearings that he had not attended and had improperly billed for travel time between his office and the Immigration and Refugee Board (“IRB”).

[6] On December 2, 2015, the applicant responded in detail to the allegations. He explained that while the IRB’s decision indicated two hearing days, the five days that he had docketed included adjournments. However, he acknowledged that his billing had improperly included 36 minutes of travel time. He said that this billing had been inadvertent and agreed to reimburse LAO.

[7] On May 19, 2016, the LAO investigator issued a report on the first investigation (the “first report”). The investigator acknowledged that the applicant had, throughout the investigation, replied promptly and endeavoured to provide a full response to LAO’s enquiries. In the report, the investigator concluded that the applicant had inflated his billing by entering time spent for adjournments as contested hearing time. With respect to the dockets for travel time, the applicant was advised that the matter would be referred to LAO’s audit and compliance unit.

[8] In the meantime, LAO had begun an investigation into the applicant’s practice of billing for his law clerk, a licenced member of the Immigration Consultants of Canada Regulatory Council, to attend refugee claim hearings (the “second investigation”). The investigator requested information from the applicant concerning a number of files to which the law clerk’s time had been billed. The applicant complied with the investigator’s request by letters dated November 25 and December 8, 2015. In response to the allegations, he explained that because the law clerk had representation rights at the IRB, he believed she was permitted to attend on behalf of legally aided clients under his supervision. He also noted that he had ceased the practice at least a year prior to the investigation.

[9] On July 26, 2016, LAO issued a further report (the “second report”). In similar fashion to the first report, the investigator acknowledged and thanked the applicant for replying promptly, completely and courteously to all requests for information. The investigator made no finding about whether the applicant knew, or did not know, that he was not entitled to use the services of a non-lawyer to conduct refugee hearings on behalf of legally aided clients. The report advised that LAO would seek recovery of the fees paid for the law clerk’s services.

[10] The applicant requested and was granted reconsideration of both reports. In each case, the reconsideration requests contained substantial responses to the allegations contained in the reports.

[11] On August 15, 2017, Victor Matanovic, the manager of the LAO investigations department, sent the applicant a 230-page report (the “third report”) in which he confirmed the findings in the first and second reports.

[12] The third report also contained a new analysis of the applicant’s billing practices based upon a sample of his accounts between 2011 and 2016. It identified over 70 additional examples of docket entries where the applicant had failed to account for travel time or where the billing was continuous (no allowance for breaks or the time required to transition between one client file and another), as well as a number of other billing irregularities. Mr. Matanovic concluded that the applicant’s billing was “not credible, reliable and realistic and appears to be false and inflated billing for financial gain.” He said that he was recommending that the applicant be removed from the panel, and that LAO staff would manually review his accounts going forward.

[13] On December 29, 2017, the applicant wrote to LAO enclosing a detailed “reply submission” with three volumes of supporting documents. He denied that he had deliberately inflated his billings and provided explanations of how the various errors identified in the report were a result of inattentiveness.

[14] On January 9, 2018, the applicant wrote again to LAO expressing concern over the conclusory nature of the third report and requesting the involvement of a new investigator. In response, LAO’s Director Audit and Compliance Services wrote to the applicant denying his request on the basis that Mr. Matanovic “acted fairly, without bias and in accordance with the Investigations Policy.” He also advised that the reconsideration of the first and second reports (contained in the third report) was final.

[15] On September 14, 2018, LAO advised that a new investigator would be assigned to the applicant’s file because Mr. Matanovic had retired. In a six-page report dated November 5, 2018 (the “final report”), the new investigator confirmed the findings of the third report.

[16] The applicant protested by letter dated November 20, 2018. He stressed that he had provided 62 pages of detailed submissions together with three volumes and hundreds of pages of supporting documents, and that after 10 months, he had expected a similarly detailed reply. He requested that “a properly detailed review of [his] request for reconsideration be conducted, preferably by a panel of [his] peers, i.e. practising refugee lawyers.” This request was denied.

[17] On October 30, 2019, the president’s delegate (the “decision maker”) notified the applicant that she proposed to remove his name from the panel pursuant to s. 32 of the Regulation. The notice referred to the investigations and the findings of a number of problems and concerns relating to breaches of LAO billing rules. The reasons for the proposal were set out in detail along with LAO's grounds for proposing reasonable cause for removal. The notice included a sample form for a request for a hearing, as well as a list of the materials relied upon in support of the notice.

[18] The applicant requested a hearing and sought additional time to prepare a written response. He also requested clarifications and additional information relating to the investigation reports and the notice. LAO provided detailed responses addressing the applicant's questions. On January 14, 2020, the applicant submitted his written response to the notice. He laid out what he argued were procedural deficiencies with the investigation and argued that there were core issues of credibility that entitled him to an oral hearing. However, the request for an oral hearing was denied.

The removal decision

[19] The decision maker released her reasons for decision on June 4, 2020. In those reasons, she determined that there was reasonable cause to remove the applicant from the panel. She stated that in doing so, she had relied only on conduct that he had admitted during the course of the investigation. Her reasons contained the following summary:

Mr. Berger has indicated that he has “learned his lesson” from this experience and it will not occur again. However, his response to the allegations does not show that he has accepted the seriousness of LAO’s concerns, as he has continued to minimize the issues in this case. His past history in this matter demonstrates a pattern of failing to remain current with LAO billing rules and of confirming his compliance with panel standards but not doing so. It is reasonable to conclude that LAO cannot rely on Mr. Berger’s promises to act in accordance with the General Terms and Conditions for Panel Lawyers in the future, and consequently, he should not be allowed to remain on the Panel.

LAO’s primary responsibility is to ensure the provision of high quality legal aid services in accordance with LASA [Legal Aid Services Act], to ensure the prudent expenditure of public funds and to protect the interests of LAO’s vulnerable clients. Mr. Berger’s billing practices, his lack of knowledge about LAO panel standards, as well as his failure to understand why these behaviours raise concerns, seriously undermines LAO’s confidence in his actions as a panel lawyer, and is reasonable cause for his removal from the LAO Panel.

Substantive review of the decision

Standard of review

[20] There is no legislated standard of review in this case, and none of the exceptions to the general rule apply. Accordingly, the applicable standard of review is reasonableness: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 23 and 53.

Whether the removal decision was reasonable

[21] “A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion.” The reasons “must not be assessed against a standard of perfection.” The court must be attentive to the expertise and experience of the decision maker: Vavilov, at paras. 84, 91 and 93.

[22] In the present case, the applicant argues that the decision is internally incoherent, that the decision maker misapprehended the evidence, and that the decision maker failed to account for relevant considerations. I disagree.

Internal cohesion

[23] “[T]he reviewing court must be able to trace the decision maker's reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that ‘there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived’". “The reasonableness standard requires that a reviewing court defer to such a decision”: Vavilov, at paras. 85 and 102.

[24] The applicant argues that the decision is internally incoherent, because the decision maker purported to base her removal decision solely on facts he had admitted, but in reality, relied upon investigative findings that went well beyond those admissions. In particular, he says that she:

• characterized his billing errors as a "pattern", a characterization that he had vehemently denied;

• concluded that he had failed to appreciate the significance and seriousness of his billing errors, a "finding” taken from the investigative report which he had not admitted; and

• concluded that he had not been honest and forthright with LAO during the investigations, again something taken from the investigative reports that he had not admitted.

[25] However, the characterization and conclusions complained of are inferences from the admitted facts which the decision maker was entitled to make. In basing her decision on admitted facts, she was not required to accept the applicant’s explanations for his billings. Rather, it was open to her to make her own inferences from the admitted facts, and the fact that those inferences may have aligned with inferences made by the investigators, rather than those urged by the applicant, is immaterial, provided those inferences were reasonably capable of being supported by the admitted facts. In my view, they were.

[26] The decision maker’s characterization of the billing errors as a “pattern” is supported by the admitted facts, and in particular, the 49 admitted billing errors.

[27] With respect to the decision maker’s finding that the applicant failed to appreciate the significance and seriousness of his billing errors, the applicant, in his written submissions, sought to minimize the number and significance of his errors, and tried to characterize the many instances of overbilling as "not a major infraction." It was open to the decision maker to disagree with the applicant and to conclude that he failed to appreciate the seriousness of the many errors in his accounts.

[28] With respect to the decision maker’s finding that the applicant was not honest with LAO during the investigations, the finding was based upon his initial failure to admit the extent of his billing errors which were only uncovered by a burdensome review of his accounts. While I acknowledge that it may be that he was initially not aware of the extent of the errors, based upon the pattern of errors which the decision maker found to have occurred, it was open to her to conclude that the applicant must have been aware from the outset that his billing errors were more than a few. In any event, she concluded that regardless of the reason for the errors, the applicant’s behaviour created a risk to the integrity of the LAO billing system, and it was for that reason that she found reasonable cause to remove his name from the panel.

Misapprehension of evidence

[29] “The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them … The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” However, the reviewing court must refrain from reweighing and reassessing the evidence, and absent exceptional circumstances, will not interfere with the decision maker’s factual findings: Vavilov, at paras. 125-126.

[30] The applicant submits that even if the decision maker was entitled to rely on the investigative reports, her reasons disclose a misapprehension of a critical finding in those reports, namely, that he had engaged in a pattern of overbilling. He argues that the investigative reports do not provide sufficient information to infer that his admitted billing errors constituted a pattern, because they do not disclose the precise parameters of the six-year review. He says that between 2011 and 2016, he billed LAO for work on a total of 1,470 days, and that the 49 billing errors to which he admitted over that period amount to errors on only 3.3 per cent of those days.

[31] While it is true that the reports do not disclose the full details of the sampling, we do know that the 49 billing errors arose from a random sampling of his accounts over the six-year period. Accordingly, to the extent that a percentage of billing days could shed light on the question of whether he engaged in a pattern of overbilling, the relevant percentage would be based on the number of sample days, rather than the total number of billing days.

[32] At paragraph 71 of her reasons, the decision maker said the following:

Due to the importance of accountability in the disbursement of public funds, a pattern of violations of LAO billing rules constitutes reasonable cause for the removal of a lawyer’s name from the LAO panel. While a single or even a few limited billing violations may not rise to the level of reasonable cause, the pattern of multiple instances over a number of years is sufficient to constitute reasonable cause.

[33] In my view, it was open to the decision maker to reach that conclusion based on the 49 instances of billing errors over the six-year period admitted by the applicant.

Impact of the decision on the applicant

[34] “Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood”: Vavilov, at paras. 133-135.

[35] In the present case, the applicant argues that the decision maker failed to direct herself to the impact on him of her decision, given that his livelihood was at stake. He says that his refugee practice depends on his ability to accept legal aid work, and that an inability to do so will be disastrous to his practice. I do not agree that the decision maker failed in this regard. She recognized that legal aid work made up a substantial portion of the applicant’s income and specifically referred to the applicant’s submission that he would be devastated by a removal from the panel.

Applicant’s expertise and track record

[36] At paragraph 24 of her reasons, the decision maker refers to s. 1 of the Legal Aid Services Act which provides that the purpose of the Act is to promote access to justice for low-income individuals by a number of means, including “providing consistently high quality legal aid services in a cost-effective and efficient manner to low-income individuals … within a framework of accountability to the Government of Ontario for the expenditure of public funds.”

[37] At paragraph 59 of her decision, the decision maker reviews the applicant’s submissions relating to his background as an immigration lawyer but concludes that his reputation as a skilled and respected immigration practitioner was not at issue.

[38] The applicant argues that in considering access to justice, the decision maker should have considered his lengthy career dedicated to the promotion of access to justice, and the impact on access to justice arising from his removal from the panel. He says that it was an error for the decision maker to conclude that his reputation was not at issue. I disagree. There is no evidence to suggest that removal of the applicant from the panel would have any appreciable impact on LAO’s ability to provide access to justice for its clients.

Improvements in the applicant’s billing

[39] The applicant was put on billing suspension for one year which meant that his accounts were manually reviewed on a certificate-by-certificate basis. In September 2018, it was found that the billing suspension was no longer necessary, due to improvement in his online account submission. As a result, the applicant argues that it was inconsistent and illogical for the decision maker to conclude that his billing could not be trusted. He says that the decision maker erred in ignoring this evidence.

[40] However, as acknowledged by the applicant in his submissions dated January 14, 2020, a certificate-by-certificate review of his accounts by LAO’s audit and compliance department would not catch the continuous billing errors which were the subject of the 49 admitted billing errors relied upon by the decision maker.

The applicant has taken responsibility for his errors

[41] The applicant argues that he took responsibility for his admitted errors, and that the fact that he did so should be taken as a mitigating circumstance. He says that it was an error for the decision maker to rely upon his admissions, while at the same time failing to acknowledge that he had taken responsibility for his errors. I disagree. The decision maker acknowledged that the applicant had admitted responsibility for certain errors and that he had stated in his submissions that he had taken steps to prevent the reoccurrence of the identified issues. With respect to the argument that taking responsibility should be viewed as mitigating, it must be remembered that the purpose of the decision was not to penalize the applicant, but rather, to protect the integrity of the LAO billing system.

Whether removal of the applicant from the panel was excessive and unreasonable

[42] The applicant argues that the removal decision “permanently removed” his name from the panel and that that was an excessive and unreasonable penalty. However, it should be noted that there was no separate penalty decision – under s. 32 of the Regulation, the sole issue before the decision maker was whether the president of LAO had reasonable cause to remove the applicant’s name from the panel. No lesser “penalty” was available.

[43] In addition, the permanence of the removal remains to be seen. Under s. 34 of the Regulation, a lawyer whose name has been removed from a panel under s. 32 may make an application to have his or her name restored to the panel.

[44] In support of his position, the applicant relies upon a number of cases in the medical licencing context in which the penalties imposed were suspensions between three and six months: Re Milstein and Ontario College of Pharmacy et al.(1978), 1978 1294 (ON CA), 20 O.R. (2d) 283 (C.A.); Re College of Physicians & Surgeons and Almad, 1973 1102 (B.C.S.C.); Re Isahey and College of Physicians & Surgeons of Manitoba, 1975 1139 (M.B.Q.B.); and Deep and College of Physicians & Surgeons of Ontario (1974), 1974 639 (ON SC), 5 O.R. (2d) 435 (Div. Ct.). However, those cases are easily distinguished. They were suspensions of the professional’s licence to practice, following findings of professional misconduct. In the present case, the decision was based on the effect of the applicant’s conduct on the integrity of the legal aid panel system (and not punishment for professional misconduct) and did not affect his licence to practice.

[45] In the result, I find the removal decision to have been reasonable.

Procedural review of the decision

Content of the duty of procedural fairness

[46] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 22, the court held that the duty of fairness is "flexible" and "depends on an appreciation of the context of the particular statute and the rights affected." The purpose of the duty is to "ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker."

[47] The court then sets out, at paras. 23-27, a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether an oral hearing is required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3)the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) choices of procedure made by the administrative decision maker herself.

[48] The applicant argues that the process by which the decision maker reached her decision was procedurally unfair, that he was entitled to an oral hearing, and that the removal decision was tainted by unfair investigations. I disagree.

Nature of the decision to be made and the process followed in making it

[49] In Baker, at para. 23, the court held that: “[t]he more the process 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.”

[50] The applicant argues that in the present case, the nature of the decision being made more closely resembles judicial decision making than administrative decision making, because it requires a determination of whether there is reasonable cause for removal, and because his ability to earn a living and his professional reputation were in issue. I disagree.

[51] In my view, the decision being made was essentially administrative in nature. It flowed from LAO's statutory discretion to manage the provision of legal aid services in Ontario. In administering the provision of legal aid, LAO is granted the authority to create and manage panels of lawyers in private practice to provide legal services. Part of that management role includes the power to both add and remove lawyers from a panel in accordance with the process set out in sections 27-37 of the Regulation. Such decisions involve discretionary considerations related to the administration of LAO.

[52] The process for removal outlined in the Regulation requires only notice, the provision of a hearing (only upon request and without specifying whether oral or in writing), and the giving of a final decision that is not subject to appeal or reconsideration. This process is far more limited than the trial model.

Nature of the statutory scheme

[53] In Baker, at para. 24, the court held that the terms of the statute under which the decision maker operates help determine the content of the duty of fairness owed when a particular administrative decision is made. For example, greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.

[54] The applicant argues that because the removal decision is not subject to appeal or reconsideration, a high level of procedural protection is required. I agree that the absence of a right to an appeal or reconsideration suggests a higher level of procedural protection. However, also relevant to this determination is the fact that under s. 83(1) of the Act, LAO is not subject to the Statutory Powers Procedure Act, which suggests entitlement to a lower level of procedural protection

Importance of the decision to the individual affected

[55] In Baker, at para. 25, the court held that the more important the decision is to the lives of those affected and the greater the impact on those persons, greater procedural protections will be required. The court quotes from its decision in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113: “A high standard of justice is required when the right to continue in one’s profession or employment is at stake …. A disciplinary suspension can have grave and permanent consequences upon a professional career.”

[56] The applicant argues that the removal decision threatens his livelihood and career as well as his professional reputation, and that as a result, stringent procedural protections were required.

[57] I agree that to the extent that his livelihood, career, and professional reputation were at stake, a higher level of procedural protection was required. However, while the removal decision will have a significant impact on his practice, this was not a disciplinary hearing and the removal of his name from the panel is in no way equivalent to a removal of his licence to practise.

Legitimate expectations of the person challenging the decision

[58] The doctrine of legitimate expectations “is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights”: Baker, at para. 26.

[59] The applicant argues that he had an expectation that his submissions would be heard and addressed by the investigators and the decision maker. I agree that he was entitled to expect his submissions to be heard and addressed by the decision maker. I find that they were. However, the applicant’s expectations with respect to the investigative process, as opposed to the removal hearing, is a separate consideration addressed below.

[60] In the present case, the only legitimate expectation that the applicant could have was that the statutory and regulatory scheme would be followed, as it was. There was no precedent for a different form of procedure upon which the applicant was entitled to rely.

Decision maker’s choice of procedure

[61] Where the statute leaves to the decision maker the ability to choose its own procedures, or where the decision maker has expertise in determining the appropriate procedures, its choice of procedure, while not determinative, is entitled to some deference: Baker, at para. 27.

[62] The applicant argues that while LAO has presumptively chosen to deal with removal decisions by way of a written hearing, there is nothing in the legislation mandating that choice. He submits that where other factors suggest a need for a different procedure, a decision maker should not blindly follow established procedure. While I do not disagree with this submission, it says nothing more than that the decision maker’s established procedure is only one of the many factors to be considered.

[63] LAO has decades of experience administering legal aid in the province and managing its relationships with empaneled members of the private bar. The procedure chosen by the decision maker in this case was in accordance with the statute and regulations and was consistent with LAO's past practice for dealing with removal decisions. LAO complied with the statutory scheme, provided disclosure and the opportunity to respond, and gave reasons for its decision.

Whether an oral hearing was required

[64] Where a decision turns on credibility, a decision maker should not make an adverse finding of credibility without affording the affected person an oral hearing: Khan v. University of Ottawa (1977), 1997 941 (ON CA), 34 O.R. (3d) 535, [1977] O.J. No. 2650 (C.A.), at paras. 21-22.

[65] In Khan, a university student, threatened with the loss of a single academic year, was entitled to a high standard of justice, which required that she be given an opportunity to participate in an oral hearing where her credibility was "the central issue" to be determined.

[66] The applicant argues that if Ms. Khan, potentially required to repeat a year of school, was entitled to an oral hearing, it is impossible to justify that Mr. Berger, whose professional reputation hung in the balance, had his request to address matters of credibility at an oral hearing ignored. I disagree.

[67] In Khan, the student had received a failing grade on a final exam, based upon the contents of three examination booklets. She maintained that she had handed in a fourth booklet. The examination committee was not convinced that a fourth booklet existed and dismissed her appeal. Unlike in the present case, the central issue to be determined was whether she was telling the truth.

[68] The decision maker in this case was alive to the fact that decisions involving credibility assessments may require an oral hearing. However, she said that her decision was “not about credibility” but rather, it was based on facts admitted by the applicant.

[69] The applicant disputes the decision maker’s statement that the case was “not about credibility” and gives two examples of what he argues are adverse findings of credibility. The first relates to the applicant’s explanation that certain billing errors were the result of inattention. The second relates to the applicant’s explanation that other billing errors occurred because he was not aware of changes to LAO’s billing policies.

[70] With respect to the applicant’s explanation that certain billing errors were a result of inattention, the decision maker wrote that “it is not clear how inattentiveness or carelessness could lead to this kind of error.” She concluded that the applicant either “made up his [docket] entries when it was time to bill” or “deliberately falsified these accounts.” The applicant argues that in finding that it was not clear how inattentiveness could lead to this kind of error, the decision maker ignored the applicant’s explanation that on busy days, he might prepare a docket the following day.

[71] However, after stating that it was not clear how inattentiveness could lead to the billing errors, the decision maker went on to say that “[r]egardless of the rationale or intention, the result was that the applicant billed LAO for work he did not perform, and he received payment for this work from public funds, a behaviour which created a risk to the integrity of the LAO payment system.” Accordingly, it is clear that the removal decision was based upon the fact that the applicant repeatedly billed LAO for work that he did not perform, and not on a dismissal of his explanation for the billing errors. The reason for the errors was immaterial.

[72] With respect to the applicant’s explanation that certain billing errors occurred because he was not aware of changes to LAO’s billing policies, the decision maker wrote that the applicant’s “responses to issues that came to light during the LAO investigation that he was not familiar with the rules is incompatible with his statements about his background and his expertise as a LAO refugee lawyer.” The applicant argues that, in effect, the decision maker dismissed his explanations, without hearing from him.

[73] However, this was not a comment on the applicant’s credibility. The decision maker was saying nothing more than that a lawyer with his background and expertise should be familiar with LAO’s billing policies. In any event, the applicant's assertion that he was not familiar with those policies provides no excuse: rather, it is simply an admission that he failed to comply with his obligations as a panel lawyer.

[74] The applicant was entitled to be heard and was heard. The decision maker’s reasons reflect her consideration of his submissions, and deal with his arguments in detail.

Fairness of the investigation

[75] The applicant argues that the decision was tainted by procedurally unfair investigations. He says that he was not provided a fair and meaningful opportunity to challenge the investigators' conclusions, and that those same conclusions infected the decision maker's analysis. He says that he repeatedly sought to engage with the findings being made against him by the investigators but received no forum to have those issues determined. I disagree.

[76] As the investigations proceeded, the applicant was given the opportunity to provide substantive submissions, an opportunity he took advantage of by submitting lengthy and detailed submissions, evidenced by the voluminous record of proceedings. All preliminary investigation findings were then reconsidered with the benefit of his submissions. The August 15, 2017 report reconsidered the May 19, 2016 and July 26, 2016 reports on a final basis. The new findings in the August 15, 2017 report were reconsidered in the final report of November 5, 2018, and there was no further opportunity for reconsideration. This process accorded with LAO's Reconsideration Guidelines, which the applicant received with both the first and second reports.

[77] In the result, I find there to have been no breach of the duty of procedural fairness.

Disposition

[78] For the reasons given, the application for judicial review is dismissed.

[79] Legal Aid Ontario will have its costs of the application, fixed in the sum of $17,500.

“S.T. Bale J.”

I agree “Penny J.”

I agree “Favreau J.”

Released: August 30, 2021

CITATION: Berger v. Legal Aid Ontario, 2021 ONSC 5776

DIVISIONAL COURT FILE NO. 234/20

DATE: 20210830

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, S.T. Bale and Favreau JJ.

BETWEEN:

Max Berger

Applicant

• and –

Legal Aid Ontario

Respondent

REASONS FOR DECISION

S.T. Bale J.

Released: August 30, 2021