CITATION: Khan v. Law Society of Ontario 2022 ONSC 1951

DIVISIONAL COURT FILE NO.: 559/20

DATE: 2022/03/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Stewart, Perell, and D.L. Edwards JJ.

BETWEEN:

OMAR SHABBIR KHAN

Appellant

• and –

THE LAW SOCIETY OF ONTARIO

Respondent

Omar Shabbir Khan, self-represented

Amanda K. Worley for the Respondent

HEARD: March 14, 2022 (at Toronto, by videoconference)

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] By a liability decision dated March 16, 2018, the Law Society of Ontario Tribunal, Hearing Division, found Omar Shabbir Khan liable for professional misconduct.[^1] By a penalty decision dated September 21, 2018, the Hearing Division revoked Mr. Khan’s licence to practice law.[^2] Two years later, by a decision dated October 26, 2020, the Appeal Division of the Law Society Tribunal affirmed the Hearing Division’s decisions.[^3]

[2] Pursuant to s. 49.38(b) of the Law Society Act,[^4] Mr. Khan appeals to the Divisional Court. He appeals the Appeal Division’s decision upholding the Hearing Division’s decision and the costs awards of $20,000 made by the Hearing Decision and $40,000 made by the Appeal Division.

[3] For the reasons that follow, Mr. Khan’s appeal is dismissed.

[4] In a separate decision, I address, Mr. Khan’s motion for a sealing order with respect to medical records that were evidence in the proceedings before the Law Society Tribunal and before this court.[^5]

B. OVERVIEW

[5] In discipline proceedings, the Law Society alleged that: (a) Mr. Khan had misrepresented his billable hours in invoices he submitted for services he had provided to Legal Aid Ontario (“LAO”); and (b) in responding to LAO’s audit inquiry, Mr. Khan had fabricated his disbursement invoices from third-party service providers such as process servers, interpreters, translators, and country expert witnesses.

[6] In his defence, Mr. Khan denied misrepresenting his billable hours. With respect to the allegation of fabrication, Mr. Khan admitted fabricating the invoices, but relying on his own evidence and the report of Dr. Julian Gojer, a psychiatrist, Mr. Khan contended that his admitted misconduct, for which he was remorseful, was a stress-driven impulsive act committed over a single weekend in October 2013 when he succumbed to Generalized Anxiety Disorder, Persistent Depressive Disorder, and Attention Deficit Hyperactive Disorder (“ADHD”).

[7] Thus, Mr. Khan’s primary defence was a Human Rights Code[^6] accommodation defence. Mr. Khan argued that he did not commit professional misconduct because his conduct was uncharacteristic impulsive behaviour over a single weekend in October 2013 caused by a mental health disability.

[8] The Hearing Division rejected Mr. Khan’s defences. It found that he had misrepresented his billable hours. It found that Mr. Khan’s accommodation defence had not been proven. The Hearing Division revoked Mr. Khan’s licence to practice law.

[9] On appeal, the Appeal Division of the Law Society’s Tribunal upheld the liability and penalty decisions of the Hearing Division.

[10] On this appeal to the Division Court, Mr. Khan submits that the Appeal Division made three reviewable errors when it dismissed his appeal from the liability and penalty decisions of the Hearing Division.

a. First, Mr. Khan submits that the Appeal Division applied the wrong standard of appellate review when it scrutinized the decisions of the Hearing Division. In particular, he submits that it erred in applied a deferential reasonableness standard to the Hearing Division’s decisions.

b. Second, Mr. Khan submits that the Hearing Division denied him procedural fairness by allowing the Law Society at the penalty hearing to split its case by improper oral and written reply submissions.

c. Third, and this is the most significant ground of appeal, Mr. Khan submits that had the Appeal Division applied the correct standard of appellate review, it would have reversed the Hearing Division’s decisions. Mr. Khan submits that the Hearing Division made a palpable and overriding error when it rejected Mr. Khan’s human right’s accommodation defence, which, in turn, led the Hearing Division to err in its ultimate conclusions that Mr. Khan was liable for professional misconduct and that the appropriate penalty was revoking his licence to practice law.

[11] As I shall explain in more detail below, Mr. Khan’s three grounds of appeal all fail.

a. With respect to the first ground of appeal although it is true that the Hearing Division misstated the standard of appellate review for its scrutiny of the decisions of the Hearing Division, nothing turns on this misstatement, because there was no procedural unfairness and no palpable and overriding error when the Hearing Division concluded that Mr. Khan was liable for professional misconduct and that his accommodation defence had failed.

b. There is no merit to Mr. Khan’s second ground of appeal because there was no procedural unfairness at the penalty hearing.

c. There is no merit to Mr. Khan’s third ground of appeal because there was no palpable or overriding error in the Hearing Division’s conclusion about when the invoices were generated and no palpable or overriding error in its ultimate conclusion that Mr. Khan was liable for professional misconduct and that his licence to practice law should be revoked.

C. FACTS

1. The Alleged Professional Misconduct

[12] Mr. Khan was called to the bar in 2000. He practiced immigration law in Hamilton, Ontario as a sole practitioner. He shared space in his father Shabbir Khan’s accounting firm office.

[13] Mr. Khan often represented refugee applicants on legal aid certificates issued by Legal Aid Ontario (“LAO”). In his certificate work with LAO, Mr. Khan was required to submit his accounts for services and disbursements through the LAO’s online electronic billing system portal. He was not obliged to attach disbursement invoices from the service providers, but he was required to retain the service providers’ invoices on file for at least six years after the accounts were rendered and to produce them to LAO on request.

[14] In July 2013, Mr. Khan closed his law practice in Hamilton and became a staff lawyer for the LAO in Toronto. He closed his office on July 18, 2013 and reported for work at the LAO on July 29, 2013. Getting to work involved the three to four hour daily commute from his home in Stoney Creek to the LAO office in Toronto and back again.

[15] On August 21, 2013, during the probationary period of his employment contract with LAO, Mr. Khan learned that the LAO was conducting an audit of his billings as a sole practitioner for the period 2009 to 2012. He was told that he had (two months) until October 31, 2013 to assemble the documents confirming his billings for the audit sample of 90 accounts on 30 files.

[16] In his Agreed Statement of Facts prepared for the Liability Hearing, of which more will be said below, Mr. Khan stated that he waited until October 2013 to gather the material for the audit. In October 2013, he hired his former legal secretary Samantha Prince to help him assemble the documents that had been requested by the LAO investigator.

[17] Ms. Prince was able to find most - but not all - of the invoices. Mr. Khan contacted some of his service providers to obtain replacements, but since some had been paid in cash, they declined providing replacement documentation. In some cases, Mr. Khan could not remember who performed the service.

[18] Mr. Khan testified to the Hearing Division that in a panic and suffering from the undiagnosed mental health ailments of anxiety, depression, and ADHD he fabricated replacement invoices over a weekend in early October, [around Saturday October 12, 2013 – Sunday October 13, 2013.[^7]] To fabricate the invoices, Mr. Khan took existing invoices and overwrote the data and changed the dates and dollar amounts. At the liability hearing, Mr. Khan said he “reverse engineered” the invoices. He said that that in making up the invoices, he tried to choose vendors, who were likely to confirm to LAO that he or she had provided the service described in the invoice.

[19] After the fabricated invoices were prepared, Mr. Khan instructed Ms. Prince to continue to track down and locate invoices but, if she could not, then she was to upload to the LAO portal the dockets and invoices that he had prepared for her. At the liability hearing, Ms. Prince was not asked whether she was aware that the invoices she received from Mr. Khan were fabricated.

[20] Fabricated invoices were uploaded to the LAO portal on Monday, October 14, 2013.

[21] Fabricated invoices were uploaded to the LAO portal on Tuesday, October 15, 2013.

[22] Fabricated invoices were uploaded to the LAO portal on Monday, October 21, 2013.

[23] Fabricated invoices were uploaded to the LAO portal on Friday, October 25, 2013

[24] Fabricated invoices were uploaded to the LAO portal on Saturday, October 26, 2013

[25] Fabricated invoices were uploaded to the LAO portal on Sunday, October 27, 2013

[26] Fabricated invoices were uploaded to the LAO portal on Wednesday December 18, 2013.

[27] In his Agreed Statement of Facts prepared for the Liability Hearing, Mr. Khan stated that he gave the fabricated invoices to Ms. Prince and that Ms. Prince uploaded them to the LAO portal. Mr. Khan said it was not possible for himself to fabricate invoices and to upload invoices while he was in his LAO office in Toronto. However, under cross-examination, Mr. Khan said he was unsure whether he was the person that uploaded the 29 invoices that were uploaded after business hours and on weekends.[^8]

[28] In what the Hearing Division described as “a curious interlude in the [liability] hearing’ that led to the calling of Ms. Prince, Shabbir Khan, and recall evidence from Mr. Khan, the Law Society called Ms. Prince as a reply witness at the liability hearing. Ms. Prince denied that she was involved in assisting Mr. Khan in the fall of 2013. The Hearing Division, however, accepted what Mr. Khan had said in the Agreed Statement of Facts and had this to say at paragraphs 36 to 41 of the liability decision about Ms. Prince’s convoluted and seesawing testimony:

36. The evidence we heard from the three witnesses during this diversion was inconsistent and potentially problematic for each of them. Documents put forward by Mr. Khan, however, made clear that Ms. Prince was actively assisting him in responding to the LAO audit. For whatever reason, it appears that Ms. Prince thought she should conceal that episode.

37. In any event, the evidence we heard about Ms. Prince’s involvement is unimportant. We say this for several reasons.

38. First, the reliability of this testimony was compromised by the failure of both sides to comply with the rule in Browne v. Dunn when they failed to put contradictory propositions to the relevant witnesses. This was compounded by Mr. Khan’s communication with his wife, who was also present in the hearing, while he was under cross-examination.

39. Second, in terms of the merits of the conduct allegations, it is unimportant whether Ms. Prince assisted Mr. Khan in creating invoices or otherwise transmitting his responses to LAO. He is responsible for their content, in any event. Indeed, he said so in his testimony. He was not going to blame his secretary; he “owned it.”

40. Third, it is unclear why the evidence on this collateral issue was presented at all. Paragraph 72 of the parties’ ASF reads as follows: In October 2013, Mr. Khan hired his former secretary to assist him to respond to the audit and to assemble documents requested by LAO, as well as find the missing documentation.

41. We have proceeded on the basis of this agreed fact.

[29] During his cross-examination, Mr. Khan admitted that in the spring of 2014, approximately a half year after the fabricated invoices had been uploaded, he contacted BC, one of his service providers. Mr. Khan had attributed approximately 30 invoices to BC. Mr. Khan told BC that the LAO’s audit was a “witch hunt.” He reached out for BC’s help by confirming the invoices attributed to him. However, BC did not provide the assistance.

2. The Audit, the Misconduct Complaint, and the Criminal Proceedings

[30] Victor Matanovic of LAO investigations conducted the LAO’s audit. He was told by one of Mr. Khan’s service providers that four of Mr. Khan’s invoices with a total value of $240 had been fabricated. The matter was referred to Hamilton Police Services and the police opened an investigation.

[31] The LAO’s audit identified 65 accounts with billing irregularities totally approximately $18,000.

[32] On May 22, 2014, the LAO terminated Mr. Khan’s employment for cause citing the billing irregularities.

[33] In January 2015, the LAO filed a professional misconduct complaint against Mr. Khan. The LAO alleged that Mr. Khan had defrauded it of $250.

[34] On September 17, 2015, Mr. Khan was arrested by the Hamilton Police Service and charged with: (a) uttering forged documents; and (b) fraud over $5,000.

[35] On January 7, 2016, a panel of the Hearing Division issued an interlocutory order - on consent - suspending Mr. Khan’s licence.

[36] About one year later, Mr. Khan brought a motion to set aside that interim decision, largely based on evidence he obtained in the meantime concerning his mental health. On April 17, 2017, his motion came on before an Ontario Law Society Tribunal panel comprised of Raj Anand (chair), Barbara Laskin, and Margaret Leighton. The panel directed that if a conduct application was not issued by the Society by May 31, 2017, the interlocutory suspension would terminate.

[37] On May 26, 2017, pursuant to s. 34 (1) of the Law Society Act, the Law Society applied for a determination whether Mr. Khan had contravened s. 33 of the Act by engaging in professional misconduct.

[38] Meanwhile on July 27, 2017, Mr. Khan pleaded guilty in criminal court to one count of uttering forged documents. A count of fraud over $5,000 was withdrawn. The Crown and Mr. Khan agreed that he would repay $16,000 as restitution, which he did. Justice Atwood granted a conditional discharge with a sentence that Mr. Khan pay the restitution. He ordered 3 years’ probation and 200 hours of community service .

[39] On August 23, 2017, the Law Society filed an Amended Notice of Application. The notice alleged that Mr. Khan engaged in improper billing practices. The Law Society alleged that Mr. Khan breached the integrity standard by: (a) billing his own time for services that he did not provide as stated, or at all; and (b) fabricating some 77 third party invoices in answering LAO’s audit inquiries.

3. The Liability Hearing

[40] For the conduct hearing, the parties prepared an Agreed Statement of Facts. They also agreed that Mr. Khan would submit a single medical report of Dr. Gojer, and that the only oral testimony would be provided by Mr. Khan. Ultimately two other witnesses testified; namely: (1) Samantha Prince, who was called to testify by the Law Society as a reply witness and (2) Shabbir Khan, who he called as a sur-reply witness with respect to Ms. Prince’s evidence.

[41] The conduct hearing proceeded on September 7 and 18, 2017. The Hearing Division did not rely on the criminal proceedings, and it made its own determination of the professional misconduct charges made against Mr. Khan.

[42] Mr. Khan admitted that between 2009 and 2013, he had also submitted accounts to LAO for appearances at hearings, with time claimed that did not reflect the court or tribunal records of the length of those hearings. The accounts included billings for more hearing time than the appearances had lasted, billings for appearances on hearing dates that were cancelled, and billings for appearance dates that Mr. Khan did not attend. In total, Mr. Khan docketed 88.32 more hours than the records for the court and tribunal attendances indicated.

[43] Mr. Khan, however, disputed that the court and tribunal records were accurate. He denied that he had misrepresented his billings for legal services.

[44] Mr. Khan did admit that he fabricated and uploaded on the LAO’s portal over seventy disbursement invoices dated between December 2009 and June 2013. The invoices were false. For example, four invoices were submitted purportedly from ITS. ITS did not provide the purported service.

[45] However, Mr. Khan testified that his mental distress over the audit and the potential loss of his new job at LAO compelled him impulsively to fabricate all the invoices. Mr. Khan’s defence argument was that it was his undiagnosed mental illness that led him to fabricate the invoices, and specifically, that he had panicked and carried out the entire fabrication exercise over a single weekend in October 2013.

[46] In advancing this defence, Mr. Khan relied on Dr. Gojer, report dated August 18, 2017. In his report, Dr. Gojer noted that in 2015, Mr. Khan had been diagnosed with anxiety, depression, and ADHD. Dr. Gojer opined that Dr. Khan was suffering from symptoms of these disabilities in 2013 and that these disabilities had influenced Dr. Khan’s behaviour in fabricating the invoices,

[47] In reaching his opinion, Dr. Gojer accepted Dr. Khan’s version of the events that the forgeries had been a spontaneous act over one weekend influenced by Mr. Khan’s stress from the audit inquiry. Dr. Gojer opined that anxiety, depression, and ADHD influenced Mr. Khan’s behavior in fabricating the invoices.

[48] By a liability decision dated March 16, 2018, the panel found Mr. liable for professional misconduct. The Hearing Division rejected Mr. Khan’s main defence that he had panicked when he learned of the LAO audit, had impulsively fabricated all the impugned invoices over a single weekend in October 2013 and that his stated mental health issues had been a causal factor in his decision to fabricate the invoices.

[49] The Hearing Division found that the Appellant had acted in a calculated manner by forging and submitting the invoices over a significantly longer period and that his mental health issues were not a causal factor. In this regard, the following paragraphs from the Hearing Divisions decision are particularly pertinent:

11. 11. In our view, his explanations lack credibility for two reasons, both of which relate precisely to the context in which his actions occurred. First, his explanations were mostly inconsistent with the surrounding circumstances, revealed in the ASF and document books and his own testimony, which together point unmistakeably to dishonesty on his part. Second, his medical evidence fell far short of demonstrating a link between his illness and his conduct.

12. In the present case, using the human rights analysis, we conclude for reasons set out below that Mr. Khan has not demonstrated that his disability was a factor in the conduct that is alleged in the Amended Notice of Application. Put differently, he has not shown the causal link between the two.

13. We reach a similar conclusion by applying the decisions of this Tribunal on the impact of disability on a finding of professional misconduct, most recently summarized in Law Society of Upper Canada v. Robinson, 2016 ONLSTH 200. In short, this Tribunal has recognized that a personal characteristic such as mental illness can provide a defence (as opposed to being only a mitigating factor for purposes of penalty) where it precludes compliance with a licensee’s regulatory obligations. Again, causation is a key requirement that must be proven by the licensee.

14. In our view, the evidence of Mr. Khan and his medical expert, Dr. Gojer, falls short of demonstrating that the Lawyer’s illness was a factor in the conduct that led to this application.

15. The respondent’s evidence in this area was formulaic. He recognized that what he had done was wrong, expressed considerable remorse, painted a picture of disarray and sloppiness in his practice, and attributed all of it to his subsequently diagnosed Attention Deficit Hyperactive Disorder and depression. When he was caught out in improper billing practices such as the attribution of 8.5-hour days to much shorter court hours, or hit-and-miss correspondence between days worked and days billed, he quickly acknowledged he had made a mistake. This presumably fit the pattern of an office in chaos.

16. As a factual matter, we have difficulty connecting his disabilities with these “errors” in billing. These are matters of honesty and basic responsibility by a lawyer who is a beneficiary of publicly funded access to justice.

17. Even more stark, is the contrast between the Lawyer’s disabilities and his deliberate alteration of historical invoices into fabricated backup to substitute for properly archived vendor bills. These do not support his alleged inattention; rather, they are evidence of deliberate, calculated dishonesty. This inference was supported by the Lawyer’s evidence that wherever he could, he chose fictitious vendors who would be likely to back up his story, if they were asked by LAO or presumably other enforcement authorities. In other words, he was willing to compound his dishonesty in producing the invoices by enlisting vendors to help him cover it up.

18. Indeed, we are unable to accept the central and most dramatic element of Mr. Khan’s thesis of disability discrimination. He stated, at least seven times, that his panic reached such a level in October 2013 that over a single weekend, he carried out the entire fabrication exercise. This was far from the truth. It was not a spontaneous event. In fact, the manufactured invoices were uploaded on 2013 dates that included June 10, October 14 and 15 (Monday and Tuesday), 21 and 25 (Monday and Friday). One of his wife’s invoices was submitted to LAO’s electronic system on November 16, 2011, long before the audit.

19. This evidence makes it even more difficult to rely on his evidence as credible. But for present purposes, it does further damage to the theory that he carefully laid out for us, in which his distress culminated in his precipitous actions on one weekend in October 2013. The fabrications simply did not happen that way. They represented a series of calculated acts, and this makes it even more difficult to draw the causal link with ADHD that he portrayed for us.

20. We turn now to Dr. Gojer’s report. We do not need to engage in a detailed review of his extensive report. We will focus on the one issue that is important to the respondent’s argument.

21. In the section headed “Diagnosis,” Dr. Gojer focused on Mr. Khan’s fabrication of invoices, and reflected words from his self-reported explanation that were quite similar to those the respondent used in his testimony:

The depression and anxiety that he suffers from likely impacted on his underlying attentional problems and his offending appears to have occurred during a lapse in judgment over a weekend. He panicked when he was told he had to produce evidence of his invoices and acted impulsively. The above stressful life events appear to have caused Mr. Khan to suffer from a Generalized Anxiety Disorder and a Persistent Depressive Disorder which were present and impacted on a pre-existing Attention Deficit Hyperactivity Disorder. These conditions influenced his behavior at the time of billing practices and submission of his invoices. … He does not have any features of an antisocial personality disorder, psychopathy, or any other personality disorder. His actions appear to be more likely the acts of a person who is careless, paying less attention to his billing practices, had poor record keeping and was unfocused and impulsive as opposed to someone who was calculating and amassing a large amount of money through fraudulent means.

107. Dr. Gojer’s conclusions are based on several significant factual premises that are different from the evidence before us, and therefore they are of little value in evaluating the Lawyer’s defence. Mr. Khan knew in August 2013 that he had to produce invoices to LAO. The weekend the Lawyer and Dr. Gojer speak of was two months later. The conduct at issue in this case was not restricted to a single weekend It occurred over a lengthy period. The most egregious of Mr. Khan’s acts were not matters of inattention or carelessness.

108. Not surprisingly, therefore, there is nothing in Dr. Gojer’s report that would link dishonesty, or a repeated pattern of wholesale errors in recording days as counsel or following basic LAO guidelines regarding reporting of court hours, or any of the other conduct that brought him before us, with his diagnosis. Moreover, the respondent ran a successful practice, which would be difficult to achieve if his disabilities prevented him from conducting his work honestly and diligently.

109. We cannot say that the Lawyer’s diagnosed mental health issues were a factor in any of this conduct, nor can we say that these illnesses rendered Mr. Khan incapable of fulfilling his professional obligations.

[50] The Hearing Division held that the Mr. Khan had committed professional misconduct by: (a) billing LAO for services he had not performed; and (b) submitting fabricated disbursement invoices to LAO. The Hearing Division directed that a penalty hearing be scheduled.

4. The Penalty Hearing

[51] After the liability decision and before the penalty hearing, Mr. Khan discovered that there were two errors in the Agreed Statement of Facts that had been submitted to the Hearing Division; namely: (1) invoice 60 was included in the list of invoices submitted in response to the LAO audit; however, since it was uploaded on July 13, 2013, which was before the announcement of the audit, it should not have been included; and (2) invoice 66 was shown as having being uploaded to LAO’s portal on November 17, 2011, when it was actually uploaded on October 14, 2013.

[52] Mr. Khan brought a mistrial motion to reopen the liability hearing on the basis of the two errors in the Agreed Statement of Facts. However, at the commencement of the penalty hearing, Mr. Khan’s mistrial motion was withdrawn upon the agreement of Mr. Khan and the Law Society. With the concurrence of the Law Society, Mr. Khan’s counsel made the following joint submission to the Hearing Division:

[…][T]he settlement proposal is as follows: Both myself and Mr. Stuart agree that the two invoices will not be relied on by counsel during the penalty hearing. We leave it to the discretion of the panel, but we suggest that there be a consideration of an amendment to the conduct ruling that they are not referenced. The manner in which you choose to do that, of course, we leave to your wisdom. My suggestion may be to add an addendum to the original ruling that those two are no longer part of the factual findings.

We agree that the overall credibility findings remain in relation to Mr. Khan. However, those two invoices and any inferences drawn on the audit period will not be factored in terms of credibility of Mr. Khan or the assessment of the medical evidence. So what we propose to do is, if it’s agreeable to the panel that that is the nature of the settlement, of course, Mr. Khan and myself are placing tremendous faith in the panel’s ability to – I’ll use the word “disabuse” their mind of the findings in relation to those two invoices and to move forward and to consider that without any potential prejudice that arises from those weaving in into the credibility assessments. Mr. Khan understands that the request is to move forward to the penalty phase based on that agreement

[53] The Hearing Division proceeded with the penalty phase hearing on May 7, 2018.

[54] The Hearing Division reviewed Mr. Khan’s additional medical evidence. Dr. Gojer updated his report and there were medical reports from Drs. Doupe, Samara, and Khattak.

[55] The parties made oral submissions. During Mr. Khan’s counsel’s responding argument, he said he would provide the panel with a written copy of his oral submissions.

[56] Following the completion of the argument, Mr. Khan’s counsel delivered a 23-page document. His counsel acknowledged that the Law Society might need to reply. The Hearing Division issued directions granting the Law Society leave to submit a written reply to the Appellant’s written submissions, which it did on May 25, 2018.

[57] In further written submissions delivered on May 31, 2018, Mr. Khan objected to the Law Society’s written submissions as improper reply and provided further submissions of his own. Shortly thereafter, the Law Society objected to the Appellant’s sur-reply materials being considered by the panel. The Hearing Division accepted the Law Society’s written reply.

[58] In its penalty decision, the Hearing Division noted although it had reviewed the reply and sur-reply submissions of both parties, it did not find them helpful.

[59] In its penalty decision, the Hearing Division addressed the matter of the two mistakes made in Mr. Khan’s Agreed Statement of Facts at paragraphs 3-7 and 24-25 of its Reasons for Decision as follows:

3. Following the release of our reasons dated March 16, 2018,1 the respondent retained new counsel. Just prior to the penalty hearing, the respondent brought a motion to reopen our findings of professional misconduct and ask for a “mistrial” on the basis that he had erroneously admitted certain facts in the Agreed Statement of Facts (“ASF”) that we relied upon in our decision.

4. That motion was settled by the parties at the penalty hearing on the following basis. Our earlier decision would stand, but for purposes of penalty, we would not rely on two invoices that were listed in Table 7 of the ASF (#60, submitted November 17, 2011, and #66, submitted July 19, 2013) as having been fabricated by the respondent in response to the LAO audit. They should not have been included in that chart, because Mr. Khan only learned of the LAO audit on August 21, 2013.

5. The parties’ agreement does not affect our finding of professional misconduct, and it has no significant impact on our consideration of the appropriate penalty.

6. In our earlier decision, we found that the chronology of the respondent’s false invoices contradicted his assertion that his fabrications had all occurred over a single weekend in October 2013. The deletion of two invoices from that chronology does not change our conclusions on the calculated nature of his acts, on his credibility, or on the factual foundation of the report by Dr. Gojer that was before us.

7. The evidence is clear that Mr. Khan created many other false invoices at times that did not match his theory that his distress had culminated in a spontaneous decision over one weekend in October 2013 to carry out the fabrication exercise. As we noted at para. 103 of our earlier decision, these false invoices were submitted on a range of dates. We provided a non-exhaustive list that went beyond the two invoices that the parties now ask us to withdraw from consideration.

8. Even excluding false invoices #60 and #66 from consideration, it is clear that the respondent fabricated invoices over several weeks in October 2013 and December 2013. In doing so, he specifically chose third party service providers who would back him up if they were questioned. In other words, they would cover up for him. In one case, he contacted BC in the spring of 2014. The respondent testified that he felt he was “part of a witch hunt,” and asked BC to “help him out.”

9. The relevant period of time for the false invoices covers many months. The erroneous billing of Mr. Khan’s time spanned a period of over two years, from 2011 to 2013.

[60] The Hearing Division addressed Mr. Khan’s accommodation defence as a factor in its determination of penalty and noted at paragraph 61 of its decision that to invoke this defence, Mr. Khan had to prove: (1) he has a personal characteristic that is protected under the Human Rights Code; (2) he experienced an adverse impact or differential treatment from his professional regulator; and (3) the protected characteristic was a factor in the adverse impact. The Hearing Division noted that if Khan satisfied these three elements, then the onus shifted to the Law Society to provide accommodation up to the point of undue hardship.

[61] In its liability determination, the Hearing Division had concluded that Mr. Khan’s accommodation defence had failed because his dishonest conduct was not causally connected to his mental state. In its the penalty hearing decision, the Hearing Division stated that the new and updated medical reports did not change its factual conclusion. In paragraphs 91 to 93 of its Reasons for Decision, the Hearing Division further explained the reasoning behind its conclusion; it stated:

91. Our conclusion results from a confluence of features that take this case beyond the threshold for relief from revocation […]. Mr. Khan’s medical circumstances, considered in conjunction with his flagrant and fraudulent actions that took place independently, do not permit us to alleviate the penalty of revocation. Taken together with the other mitigating and aggravating circumstances, it is not obvious to us, and we believe it would not be obvious to other licensees and the public, that this is an individual whose continued licence would maintain confidence in the integrity of the profession and its self-regulation by the Law Society. Stripped to its essentials, a reasonably informed observer would not regard mental illness causing a significant ethical failure A (a disorganized practice) to alleviate the public interest implications of much more serious conduct, intentional misbehaviour B (dishonesty and fabrication).

92. In human rights terms, it is difficult to see a case of prima facie discrimination on grounds of disability. The respondent finds himself facing presumptive revocation for reasons that are independent of his disability. There is no legal duty to accommodate, in this case, on the part of the Law Society and the Tribunal.

93. If there were a causal connection between the most serious misconduct and the respondent’s mental illness, this panel would have to weigh whether the totality of Mr. Khan’s personal circumstances at the relevant time could be accommodated by a penalty short of revocation of his licence. Our determination would focus on the impact, of his continuing status as a licensee, on public acceptance of the integrity of the legal profession. Even then, given the conduct at issue, the Law Society might well be able to claim that continuation of his licence would constitute undue hardship to its statutory mandate of protection of the public interest. We do not have to make that assessment, given our factual conclusion about the impact of his mental illness in this particular case.

5. The Appeal to the Appeal Division

[62] Mr. Khan appealed to the Law Society Tribunal Appeal Division, and on May 28-29, 2020, a panel comprised of Christopher Bredt (chair), C. Scott Marshall, Barbara J. Murchie, Lubomir Policik, and Eric Whist heard his appeal by videoconference.

[63] The Appeal Division released its decision on October 26, 2020.

[64] The Appeal Division found that there had been no procedural unfairness in the hearings before the Hearing Division.

[65] The Appeal Division dismissed Mr. Khan’s argument that the Hearing Division misused the evidence with respect to Invoices 60 and 66. The Appeal Division stated at paragraphs 65-66 of its decision:

65.The Lawyer submits that the hearing panel violated its own undertaking to amend its conduct decision to remove references to the two invoices which were erroneously referred to in the ASF.

66. This submission is without merit. First, the hearing panel did not give an undertaking to take any steps after the Lawyer withdrew his motion for mistrial. The agreed resolution of the Lawyer’s motion was that the findings of credibility relating to the Lawyer at the merits hearing would remain, but neither counsel nor the hearing panel would rely on those invoices. Further, and in any event, the hearing panel did correct the record with respect to the two invoices at the outset of its reasons on penalty. Again, we would not give effect to that ground of appeal..

[66] The Appeal Division dismissed Mr. Khan’s argument that the Hearing Division had misapprehended the evidence regarding his accommodation defence. In paragraph 21 of its decision, the Appeal stated:

21. The hearing panel rejected the Lawyer’s account of how he had forged the invoices because the explanations were “mostly inconsistent with the surrounding circumstances, revealed in the ASF and the document books and his own testimony, which together point unmistakably to dishonesty on his part.” The hearing panel rejected the Lawyer’s evidence that his misconduct had been limited to one isolated weekend and relied on the fact that the documents he fabricated were then uploaded to the LAO portal over an extended period, by him or by his assistant with his authorization. The hearing panel concluded that the Lawyer’s actions were the result of dishonesty and not any disability….

[67] The Appeal Division dismissed Mr. Khan’s argument that the hearing panel erred in its analysis of discrimination under the Human Rights Code, the Appeal Division held that there was no error in the Hearing Division’s application of the law to his discrimination defence. The pertinent passages from the Appeal Division’s decision are paragraphs 51-52, which stated:

51. The mere fact that an individual has a disability does not automatically establish discrimination. It is essential to a finding of discrimination that there be a causal connection between the individual’s disability and the adverse treatment.

52. In its reasons for making a finding of professional misconduct, the hearing panel correctly stated the law applicable to a defense of discrimination, referring to both the Stewart and Robinson decisions. The hearing panel accepted that the Lawyer suffered from mental health issues and those constituted disabilities under the Code. However, the panel found on the evidence before it that the Lawyer had not established that there was a causal relationship between his disabilities and the misconduct at issue. The panel concluded as follows: “We cannot say that the Lawyer’s diagnosed mental health issues were a factor in any of this conduct, nor can we say these illnesses rendered Mr. Khan incapable of fulfilling his professional obligations.” This conclusion is reasonable based upon the evidence before the hearing panel.

53. The hearing panel then turned to a consideration of the Lawyer’s argument that his mental disabilities at the time of his misconduct constituted exceptional circumstances which removed him from the presumptive penalty of revocation. The panel rejected this argument because the evidence relied upon did not address or persuasively contradict the absence of a causal link between the disability and the Lawyer’s dishonest conduct. […]

54. The reasons of the hearing panel make clear that it carefully reviewed the Lawyer’s evidence and the medical evidence of his disability and concluded that there was no causal relationship between the disability and the professional misconduct. This conclusion is reasonable based upon the evidence before the panel. We see no error in the hearing panel’s consideration of the law applicable to the human rights/disability issues raised, and the application of that law was reasonable.

[68] In the result, the Appeal Division affirmed the Hearing Division’s decision. On March 24, 2021, the Appeal Division released its Reasons for Decision on Costs, ordering the Appellant to pay $40,000 to the Law Society in five annual installments of $8,000.

[69] On November 25, 2020, Mr. Khan appealed to the Divisional Court.

D. THE DIVISIONAL COURT’S STANDARD OF APPELLATE REVIEW

[70] This is a statutory appeal. The Divisional Court has jurisdiction pursuant to s. 49.38(b) of the Law Society Act, which provides that: “[a] party to a proceeding before the Appeal Division may appeal to the Divisional Court from a final decision or order of the Appeal Division if … the proceeding was commenced under section 34 or 38.”

[71] As established by the Supreme Court of Canada in Canada (Minister of Immigration and Citizenship) v. Vavilov,[^9] appellate standards of review apply to this appeal. Those standards are set out in Housen v. Nikolaisen.[^10]

[72] Where a ground of appeal raises an issue of law alone, the standard of review is correctness.[^11]

[73] Where the ground of appeal raises a question of fact, the appellate court must pay substantial deference to it. Before it may properly interfere, the appellate court must conclude that the submitted error amounts to a “palpable and overriding error”. The word “palpable” means “clear to the mind or plain to see”[^12], and “overriding” means “determinative”[^13] in the sense that the error “affected the result”.[^14] The Supreme Court has held that other formulations capture the same meaning as “palpable error”: “clearly wrong”, “unreasonable” or “unsupported by the evidence”.[^15]

[74] Examples of palpable error include: (a) findings made in the complete absence of evidence (this could also amount to an error in law); (b) findings made in conflict with accepted evidence; (c) findings based on a misapprehension of the evidence; (d) findings of fact, drawn from primary facts, that are a result of speculation rather than inference; and (e) findings of fact based on evidence that has no evidentiary value because it has been rejected by the trier of fact.[^16]

[75] Matters of mixed fact and law lie along a spectrum; where the error of the decision-maker can be traced to a clear error in principle, it may be characterized as an error of law and subjected to a standard of correctness; where the legal principle is not readily extricable, then the matter is subject to standard of palpable and overriding error.[^17]

[76] In Law Society of Ontario v. Diamond,[^18] a post-Vavilov decision, the Court of Appeal held that the question of whether a lawyer engaged in professional misconduct is a question of mixed fact and law reviewable on a standard of palpable and overriding error. In Chijindu v. Law Society of Ontario,[^19] which was an appeal from an Appeal Division revoking a licence to practice law, the Divisional Court held the standard of review is as set out in Vavilov for statutory appeals from decisions of administrative tribunals.

[77] To overturn a penalty imposed by a regulatory tribunal, it must be shown that the tribunal made an error in principle or that the penalty was clearly unfit, which is to say that it manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases.[^20]

[78] With respect to questions of procedural fairness, the standard of appellate review is determined in accordance with the principles established by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration).[^21]

E. FIRST GROUND OF APPEAL: THE APPEAL DIVISION’S STANDARD OF REVIEW

[79] In five paragraphs of its of its decision,[^22] the Appeal Division referred to the Penalty Decision as being “reasonable.” Mr. Khan submits that the Appeal Division ought to have asked whether the Hearing Division was correct or had committed a palpable and overriding error. He argues that by applying the wrong standard of appellate review, the Appeal Division made a reversable error of law and, therefore, its decision should be set aside.

[80] In my opinion, this ground of appeal fails for three reasons.

[81] First, although the Appeal Division was wrong in articulating its appellate scrutiny of the Hearing Division’s decisions using the language of reasonableness, the outcome would not have been different had the Appeal Division articulated the appropriate standard of appellate review.

[82] As the discussion later in these Reasons for Decision will demonstrate, despite Mr. Khan’s arguments to the contrary: (a) applying the Baker v. Canada (Minister of Citizenship and Immigration) standard, there was no procedural unfairness; and (b) applying the Housen v. Nikolaisen standard of appellate review to findings of mixed fact and law and findings of fact, there was no palpable and overriding error of fact.

[83] Second, although the Appeal Division was wrong in articulating its appellate scrutiny of the Hearing Division’s decisions using the language of reasonableness, a review of its reasons as a whole reveals that it actually applied the proper standard of appellate review and very carefully and comprehensively reviewed the Hearing Division’s decision and concluded that there was no procedural unfairness and there was no palpable and overriding error.

[84] In this last regard, as mentioned above. the Supreme Court has held that a “palpable error” is an “unreasonable” decision. In effect, in the immediate case, in concluding that the Hearing Division’s decision was reasonable, the Appeal Division was concluding that there was no palpable and overriding error.

[85] Third, for the reasons set out in the next two sections of these Reasons for Decision, if it were necessary, I would exercise this court’s authority pursuant to s. 134 (1) of the Courts of Justice Act[^23] to make the decision that ought to or could have been made by the tribunal appealed from.

[86] With respect to this ground of appeal, for clarity and to avoid confusion in future cases, I repeat that the standard of appellate review that the Appeal Division ought to have articulated and applied to the decision of the Hearing Division is the same standard that the Divisional Court is applying to the decision of the Appeal Division.

[87] The standard to be applied by the Appeal Division to the decisions of the Hearing Division is the standard established by the Supreme Court in Canada (Minister of Immigration and Citizenship) v. Vavilov. Applying this standard: (a) responds to the Supreme Court’s impetus to respect legislative choices and to rationalize and assimilate standards of review in civil and administrative law appeals; (b) supports adjudicative comity and consistency; and (c) avoids unnecessary confusion, given that appeals may proceed to the Appeal Division and then to the Divisional Court and then to the Court of Appeal.

[88] Strictly speaking, the Supreme Court of Canada’s decision in Vavilov did not address the standard of appellate review by an appellate administrative tribunal to its internal proceedings. Rather, Vavilov considered the standard of judicial review of the decisions of administrative tribunals.

[89] Vavilov is about the court’s approach to reviewing the decisions of administrative tribunals. Before Vavilov, the governing authority was Dunsmuir v. New Brunswick,[^24] which held that the decisions of administrative tribunals should generally be reviewed against a standard of reasonableness in deference to the administrative tribunals specialized expertise in the subject matter. However, Dunsmuir stipulated a correctness standard in respect of jurisdictional and questions of law where the tribunal had no particular expertise.

[90] Vavilov reconsidered the Dunsmuir standard, and Vasilov confirmed the reasonableness standard for judicial reviews, but the Court held that in statutory appeals, courts should adopt the traditional standards of appellate review for issues of fact, issues of mixed fact and law, issues of fact, and issues of procedural fairness. The Court held that where the legislator had prescribed a statutory appeal mechanism that signaled appellate standards should apply.

[91] Section 49.32 of the Law Society Act provides a statutory right of appeal from certain orders and decisions of the Hearing Division to the Appeal Division. Section 49.38 provides a statutory right of appeal from the Appeal Division to the Divisional Court. In my opinion, the legislator of the Law Society Act has prescribed a statutory appeal mechanism that signals appellate standards of review should apply.

[92] In Law Society of Ontario v. Robson,[^25] Amendola v. Law Society of Ontario,[^26] Polanski v. Law Society of Ontario,[^27] Manilla v. Law Society of Ontario,[^28] Hutton v. Law Society of Ontario,[^29] Issac v. Law Society of Ontario,[^30] Law Society of Ontario v. David,[^31] Law Society of Ontario v. Rothman,[^32] Wilkings v. Law Society of Ontario,[^33] Law Society of Ontario v. De Rose,[^34] Law Society of Ontario v. Regan,[^35] and Law Society of Ontario v. Chijindu,[^36] the Appeal Division accepted or applied the Vavilov standard of review on appeals from the Hearing Division, sometimes without accepting that it was bound to do so and sometimes applying both the Vavilov standard and the Dunsmuir standard.

[93] In the immediate case, if the Appeal Division had manifestly applied the Vavilov standard, that would not have assisted Mr. Khan because, as the discussion next will reveal, he has not demonstrated that the hearing before the Hearing Division was procedural unfair or that the Hearing Division made a palpable and overriding error with respect to Mr. Khan’s accommodation defence.

[94] Mr. Khan’s first ground of appeal fails.

F. SECOND GROUND OF APPEAL; PROCEDURAL UNFAIRNESS

[95] In my opinion, there was no unfairness in the Hearing Division’s receiving written submissions from Mr. Khan followed by written submissions from the Law Society.

[96] If there was splitting of the argument, then both sides were the perpetrators, beginning with Mr. Khan’s counsel who recognized that the Law Society should be provided with an opportunity to respond.

[97] If there was some argument splitting, then both sides had additional opportunities to respond with their further written submissions about the evidence. There is no procedural unfairness here.

[98] In any event, the Hearing Division reviewed the further submissions and indicated that that they were not helpful. There was no procedural fairness and neither side was taken by surprise or taken advantage of in the circumstances of the hearing before the Hearing Division.

[99] Mr. Khan’s second ground of appeal fails.

G. THIRD GROUND OF APPEAL: PALPABLE AND OVERRIDING ERRORS OF FACT

[100] Mr. Khan most substantial ground of appeal is that the Appeal Division should have concluded that the Hearing Division made a palpable and overriding error when: (a) it did not believe his version of the events; (b) it found that Dr. Gojer had not shown that Mr. Khan’s misconduct was causally connected to his mental state; and (c) it rejected his human right’s accommodation defence, all of which errors led the Hearing Division to err in its ultimate conclusions that Mr. Khan was liable for professional misconduct and that the appropriate penalty was revoking his licence to practice law.

[101] On this appeal, I am not persuaded by Mr. Khan’s arguments that the Hearing Division made any palpable and overriding error of fact or of mixed fact and law in rejecting Mr. Khan’s accommodation defence. There were numerous fallacies in Mr. Khan’s arguments.

[102] Mr. Khan made the fallacious argument that there was no evidence to contradict his evidence that he fabricated the invoices over one weekend in October and in the absence of conflicting evidence, the Hearing Division and the Appeal Division must as a rule of law accept that evidence. That argument is fallacious on four counts.

[103] First, as a factual matter, it was all of peculiar, implausible, self-serving, and uncorroborated that Mr. Khan would wait until October 12-13, 2013 to impulsively fabricate invoices when he had known since the end of August, 2013 that he must respond to the LAO’s audit and when he still had two more weeks to do so.

[104] Second, as a factual matter, the matter of impulsiveness was contradicted by the subsequent uploading of the invoices which Mr. Khan either did himself or he directed Ms. Prince to upload. If Mr. Khan acted impulsively in preparing the invoices, he acted methodically and purposefully thereafter in uploading and having uploaded the invoices. And he acted methodically, purposefully, and deviously in the spring of 2014, approximately a half year after the fabricated invoices had been uploaded, to contacted BC, one of his service providers, to back up his fabrications. Thus, there was evidence that contradicted Mr. Khan’s account that he had acted impulsively, and the evidence rather showed a series of calculated acts of deliberate, calculated dishonesty. Contrary to Mr. Khan’s submissions, there was evidence to support the Hearing Division’s rejection of his accommodation defence based on his mental illness. It was within the province of the Hearing Division to not believe Mr. Khan’s self-serving explanation that he fabricated all of the false invoices over a single weekend in October 2013. The Hearing Division set out the basis for its findings that Mr. Khan’s actions were “a series of calculated acts” that “do not support his alleged inattention; rather, they are evidence of deliberate, calculated dishonesty.” These were finding of fact and credibility, subject to significant deference. In turn, the Appeal Division determined that the Hearing Division had delivered careful and thorough reasons in support of its findings and while the Appeal Division articulated a standard of reasonableness, its reasons reviewing the Hearing Division’s decision, reveal that the Appeal Division concluded that there was no palpable and overriding error made by the Hearing Division and that there was ample evidence to support the findings of fact of the Hearing Division.

[105] Third, unrelated to the fabrication of invoices over one weekend but related to the other allegations of misconduct, there was abundant evidence that Mr. Khan had deliberately misrepresented his dockets about hearing times. This was further evidence that showed a series of calculated acts of deliberate, calculated dishonesty and provided additional reasons to doubt Mr. Khan’s reliability and credibility.

[106] Fourth, as a matter of law, while a trier of fact may take into account such things as whether a witness is not cross-examined or whether there is no conflicting evidence, there is no presumption that a witness is telling the truth, and it is for the trier of fact to weigh the totality of the evidence and to decide what weight and belief to give it.[^37] In the immediate case, it was open to the Hearing Division not to believe Mr. Khan’s self-serving account of his behaviour.

[107] Mr. Khan made a fallacious argument based on his assertion that he could not have fabricated the invoices while working in Toronto LAO and this supported his evidence that he fabricated the invoices in Hamilton over one impulsiveness weekend. This argument is fallacious because even if it were true that he could not fabricate the invoices in Toronto, it does not follow that the invoices could only have been fabricated over one weekend in October, in Hamilton. Between August 21, 2013 and mid-October 2013, when the invoices were uploaded, there were all the evenings after the commute from Toronto and seven weekends when the admittedly fabricated invoices could have been prepared for uploading.

[108] Mr. Khan made the fallacious complicated chain-reaction argument that the Hearing Division at the penalty hearing was led to error in rejecting Dr. Gojer’s mental health evidence, which supported Mr. Khan accommodation defence, because of its reliance on invoices 60 and 66 which mistakenly had made their way into the Agreed Statement of Facts and which the Hearing Division relied on in its liability decision and which it did not correct for in its penalty decision. This argument is fallacious on three counts that reveal that there was no error, much less a palpable and overriding one.

[109] First, the Hearing Division did not rely on invoices 60 and 66 to come to its conclusion that Dr. Gojer’s evidence did not causally connect to proving the accommodation defence. As noted above, there was other evidence to show that Mr. Khan’s misconduct was not confined to impulsive behaviour over one weekend in October 2013.

[110] Second, the Hearing Division’s penalty decision made it clear both that it was not relying on invoices 60 and 66 and that there was ample evidence independent of those invoices upon which to ground and explain its conclusions. There was no reason for it to issue an amendment or a correction to its liability decision, and, in any event. Mr. Khan consented and left this matter to the discretion of the Hearing Division when he withdrew his mistrial motion at the commencement of the penalty hearing.

[111] Third, Dr. Gojer’s opinion was based on Mr. Khan’s self-serving account of what motivated his behaviour and the timing of it. Dr. Gojer’s evidence of Mr. Khan’s mental disability, however, did not explain the span of Mr. Khan’s behaviour from the fabrication of the invoices to their sequential uploading on to the LAO portal. If Mr. Khan genuinely had a one-time impulsive egregious lapse of judgment that he regrets, then he had two weeks (from October 14 to October 31) to recant and simply report to the LAO that his poor record keeping and retention practices was the explanation for his inability to provide genuine invoices.

[112] Therefore, Mr. Khan’s third and most substantial ground of appeal fails.

H. CONCLUSION

[113] For the above reasons, Mr. Khan’s appeal is dismissed with costs fixed at $10,000 as agreed by the parties.

Perell, J.

I agree:

Stewart, J.

I agree:

D.L. Edwards, J.

Released: March 30, 2022

[^1]: Law Society of Upper Canada v. Khan, 2018 ONLSTH 35. [^2]: Law Society of Upper Canada v. Khan, 2018 ONLSTH 131. [^3]: Law Society of Ontario v. Khan, 2020 ONLSTA 18. [^4]: R.S.O. 1990, c. L.8. [^5]: Khan v. Law Society of Ontario 2022 ONSC 1950 (Div. Ct.). [^6]: R.S.O. 1990, c. H.19. [^7]: The weekend was not specified in the various decisions of the Hearing Division and the Appeal Division but the subsequent submission of the invoices reveals that Mr. Khan must have been referring to the weekend October 12-13, 2013. The alternative is the weekend of October 5-6, 2013. In any event, the Hearing Division did not believe Mr. Khan that the fabrication occurred over a single weekend. [^8]: Monday October 21, 2013; Friday October 25, 2013; Saturday October 26, 2013; and Monday October 27, 2012. (see Tables I to VII in Agreed Statement of Facts. [^9]: 2019 SCC 65. [^10]: 2002 SCC 33. [^11]: Housen v. Nikolaisen, 2002 SCC 33. [^12]: Housen v. Nikolaisen, 2002 SCC 33 at para. 5. [^13]: Schwartz v. Canada, [1996] 1 S.C.R. 254. [^14]: L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 55. [^15]: L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paras. 55, 56. [^16]: Waxman v. Waxman, [2004] O.J. No. 1765 at paras. 296, 306, 335, and 349 (C.A.). [^17]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53; MacDonald v. Chicago Title Insurance Co. of Canada, 2015 ONCA 842 at paras. 1-41, leave to appeal refused [2016] S.C.C.A. No. 39; Housen v. Nikolaisen, 2002 SCC 33. [^18]: 2021 ONCA 255. [^19]: 2021 ONSC 4872 (Div. Ct.). [^20]: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039; College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420. [^21]: 1999 699 (SCC), [1999] 2 S.C.R. 817. See also Longman v Ontario College of Pharmacists, 2021 ONSC 1610 at para. 31 (Div. Ct.). [^22]: Paragraphs 52, 53, 55, 73, and 76 of the decision. [^23]: R.S.O. 1990, c. C.43. [^24]: 2008 SCC 9. [^25]: 2022 ONLSTA 4. [^26]: 2022 ONLSTA 3. [^27]: 2021 ONLSTA 26. [^28]: 2021 ONLSTA 25 [^29]: 2021 ONLSTA 23. [^30]: 2021 ONLSTA 21. [^31]: 2021 ONLSTA 17. [^32]: 2021 ONLSTA 13. [^33]: 2021 ONLSTA 15 [^34]: 2021 ONLSTA 9. [^35]: 2021 ONLSTA 6. [^36]: 2020 ONLSTA 19. [^37]: R. v. Thain, 2009 ONCA 223 at para. 32; R. v. Luciano, 2011 ONCA 89 at para. 147.