CITATION: Amendola v. Law Society of Ontario, 2023 ONSC 4123
DIVISIONAL COURT FILE NO.: 510/22
DATE: 20230719
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Stewart, Lococo and O’Brien JJ.
BETWEEN:
ERSIO AMENDOLA Applicant
– and –
LAW SOCIETY OF ONTARIO Respondent
Ersio Amendola, Applicant, acting in person
Rhoda Cookhorn, for the Respondent
HEARD at Toronto: June 12, 2023, by video conference
REASONS FOR JUDGMENT
R. A. LOCOCO J.
I. Introduction
[1] The applicant Ersio Amendola (the “Applicant”) brings an application for judicial review of two decisions of the Law Society Tribunal (the “Tribunal”): the Hearing Division’s decision dated November 13, 2020 (reported at 2020 ONLSTH 130) and the Appeal Division’s decision dated February 16, 2022 (reported at 2022 ONLSTA 3) (together, the “Tribunal Decisions”).
[2] In 2009, the respondent Law Society of Ontario (the “LSO”) granted the Applicant’s application for a paralegal licence. The Applicant then began to practice as a licensed paralegal.
[3] In 2018, the LSO became aware that in 2007, when the Applicant was licensed as a real estate agent, the Discipline Committee of the Real Estate Council of Ontario (“RECO”) sanctioned him for professional misconduct and ordered him to pay an administrative financial penalty. The Applicant had answered “no” to a question in the paralegal licence application asking if he ever been sanctioned or had a penalty imposed by a court, an administrative tribunal or a regulatory body.
[4] As a result of the information received by the LSO, the Applicant’s licence application was reconsidered in a hearing before the Hearing Division. The hearing panel refused the license application. On appeal to a five-member panel of the Appeal Division, the Applicant’s appeal was dismissed, with two panel members dissenting.
[5] The Applicant submits that the Hearing Division did not have the jurisdiction to refuse his paralegal licence application once a licence was issued and that he was denied procedural fairness.
[6] For the reasons below, I would dismiss the judicial review application.
II. Factual background
[7] The Applicant was a real estate agent for over 25 years. In 2004, he was involved in a disputed real estate transaction that was the subject of a complaint to RECO, the licensing body for Ontario realtors. His conduct was considered by a panel of RECO’s Discipline Committee. In its 2007 decision, the panel found that he had engaged in professional misconduct and ordered him to pay an administrative penalty of $10,000.
[8] The Applicant appealed the panel’s order to RECO’s appeal panel. In July 2008, the appeal panel dismissed the appeal and ordered the Applicant to pay costs of the appeal in the amount of $1,600.
[9] The Applicant then made an application to the Divisional Court for judicial review of the RECO panel decisions. Despite his pending judicial review application, the Applicant surrendered his real estate licence in October 2008. According to the Applicant, he did so after his broker told him that he would have to pay the ordered penalty to RECO if he wanted to continue working as a real estate agent, but RECO could not enforce the penalty if he surrendered his real estate licence.
[10] In February 2009, the LSO granted the Applicant’s application for a paralegal licence. In his license application, he answered “no” to the following questions:
#7 – Have you ever been suspended, disqualified, censured or otherwise disciplined as a member of any professional organization? If yes, attach a letter or certificate of good standing to this application.
#13 – Have you ever been sanctioned or had a penalty imposed upon you by a court, an administrative tribunal or a regulatory body?
[11] In May 2009, the Divisional Court dismissed the Applicant’s application for judicial review of the RECO panel decisions and ordered him to pay costs of $1,500.
[12] In January 2016, RECO contacted the Applicant, seeking to enforce the outstanding administrative penalty and costs orders. He did not contest the enforceability of those orders and made payment arrangements with RECO.
[13] In 2018, the LSO became aware of the Applicant’s disciplinary history with RECO. In February 2019, the LSO advised the Applicant that it was investigating the matter. The Applicant provided documents that the LSO requested and was interviewed by an LSO investigator.
[14] On January 15, 2020, the LSO referred the matter for a licensing hearing before the Hearing Division. The notice of hearing provided as follows:
The Law Society of Ontario refers your application for a licence, notwithstanding your receipt of a licence on February 11, 2009, to a hearing under s. 27(4) of the Law Society Act, R.S.O. 1990, c. L.8.
[15] Section 27 of the Law Society Act (“LSA”) is set out in full below (emphasis added):
Licensing
Classes of licence
27 (1) The classes of licence that may be issued under this Act, the scope of activities authorized under each class of licence and any terms, conditions, limitations or restrictions imposed on each class of licence shall be as set out in the by-laws.
Good character requirement
(2) It is a requirement for the issuance of every licence under this Act that the applicant be of good character.
Duty to issue licence
(3) If a person who applies to the Society for a class of licence in accordance with the by-laws meets the qualifications and other requirements set out in this Act and the by-laws for the issuance of that class of licence, the Society shall issue a licence of that class to the applicant.
Refusal
(4) An application for a licence may be refused only after a hearing by the Hearing Division, on referral of the matter by the Society to the Tribunal.
Parties
(5) The parties to a hearing under subsection (4) are the applicant, the Society and any other person added as a party by the Hearing Division.
Subsequent applications
(6) If an application for a licence is refused, another application may be made at any time based on fresh evidence or a material change in circumstances.
[16] The licensing hearing before the Hearing Division was held by video conference on October 6 and 7, 2020. On November 13, 2020, the Hearing Division rendered its written decision (the “Hearing Decision”).
III. Tribunal Decisions
A. Hearing Decision
[17] In the Hearing Decision, at paras. 18-20, the panel considered the application of s. 8(2) of the LSO’s By-Law 4, which provides as follows:
Misrepresentations
(2) An applicant who makes any false or misleading representation or declaration on or in connection with an application for a licence, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for the issuance of any licence under the Act.
[18] Citing the Appeal Division’s decision in Law Society of Upper Canada v. Stewart, 2012 ONLSAP 30, at paras. 25, 29, the hearing panel found that given the unequivocal wording of s. 8(2) of By-Law 4, a hearing panel has no discretion to grant a licence application where the applicant has deliberately made false or misleading representations in the application: Hearing Decision, at para. 20.
[19] The hearing panel went on to consider whether the Applicant had deliberately made a false declaration in his license application when he answered “no” to questions 7 and 13, thereby failing to disclose his disciplinary history with RECO: at paras. 27-41.
[20] With respect to question 7 (“Have you ever been suspended, disqualified, censured or otherwise disciplined as a member of any professional organization?”), the Applicant offered the explanation that he did not think the question referred to RECO because he never thought of himself as a professional or RECO as a professional organization: at para. 27. The panel found that while the Applicant was clearly mistaken in that belief, it was not satisfied that he had deliberately lied when answering that question: at paras. 32-33.
[21] With respect to question 13 (“Have you ever been sanctioned or had a penalty imposed upon you by a court, an administrative tribunal or a regulatory body?”), the Applicant explained that just as he did not consider RECO to be a professional organization, he did not consider it to be a regulatory body or an administrative tribunal, although he acknowledged that he had come to understand differently: at para. 34. The panel rejected his explanation and found that his failure to disclose the prior disciplinary order was deliberate: at paras. 41, 45.
[22] The panel also found that after receiving his paralegal licence in 2009, the Applicant had ample opportunity on various occasions to correct his failure to disclose that history to the LSO but failed to do so. The panel found that his failure to do so was inconsistent with his obligation to inform the LSO of any change within his application: at para. 44.
[23] In conclusion, the panel found that because of the Applicant’s deliberately false declaration when answering question 13, he was deemed inadmissible as a licensee. Therefore, it was not necessary for the panel to consider whether he presently met the good character requirement in s. 27(2) of the LSA: at para. 47. After considering the parties’ written costs submissions, the Hearing Division ordered the Applicant to pay costs of $6,000.
B. Appeal Decision
[24] The Applicant appealed the Hearing Decision to the Appeal Division. He also sought a stay of the Hearing Decision pending appeal. The Appeal Division refused the stay, with costs set at $2,500.
[25] A five-member panel of the Appeal Division heard the appeal by video conference on June 25, 2021. By written decision dated February 16, 2022 (the “Appeal Decision”), the appeal was dismissed, with costs subsequently set at $4,875.
[26] A majority of the appeal panel (consisting of one lay member and two paralegal members) found that the Hearing Division properly rejected the Applicant’s license application. The majority found that having determined that he deliberately made a false declaration, the Hearing Division was required to refuse the licence by s. 8(2) of By-Law 4, under which “a deliberate false declaration results in deemed failure to meet licensing requirements”, the relevant requirement being the “good character” requirement in s. 27(2) of the LSA: Appeal Decision, at paras. 3, 6.
[27] The majority found this interpretation to be consistent with the principles of statutory interpretation, which includes consideration of the LSO’s legislative mandate to ensure that the people of Ontario are served by members of the legal professions who meet high standards of learning, competence and professional conduct: at para. 13. The majority also found that “it would be absurd if a licence applicant could remain licensed to provide legal services or practice law, despite having made deliberate false representations on his licensing application, as long as their misrepresentation is not found out in time”: at para. 7.
[28] The majority rejected the argument that the Hearing Division did not have the authority to refuse a licence application once the licence had been granted, adopting the reasoning in Khan v. Society of Upper Canada, 2012 ONLSHP 15: Appeal Decision, at para. 20. The majority also stated that “[i]t would be better if the legislation and the by-law were amended to directly address misrepresentations discovered post-licensing”: at para. 24.
[29] The majority also addressed the issue of whether in making its decision the Hearing Division should have considered the Applicant’s conduct after he was licensed. The majority found that since the Hearing Division had “no discretion but to refuse the licence [citing Stewart], events subsequent to licensing, whether good or bad, are irrelevant”: at para. 22. The majority also noted that it was open to the Applicant to apply to return to paralegal practice in the future (under s. 27(6) of the LSA) since “a former licensee can apply for a new licence after a significant passage of time since the inappropriate act and with the demonstration that he or she is presently of good character”: at para. 23.
[30] A minority of the appeal panel (consisting of two lawyer members) disagreed. The minority concluded that the Hearing Division did not have jurisdiction to revoke the Applicant’s licence. On that basis, the minority would have allowed the appeal: Appeal Decision, at para. 30.
[31] Applying the principles of statutory interpretation, the minority found that consistent with the statutory wording read in context and the legislative scheme, s. 27 of the LSA does not permit the LSO to refer a licence application for a hearing under s. 27(4) once a licence has already been issued: at paras. 111-124. There is nothing in s. 27(4) that provided for a referral “notwithstanding [a] receipt of a licence”, as was done in this case: at paras. 111-112. Once the licence was issued to the Applicant, he was no longer an “applicant”. He was a licensee. There was no longer an application to be refused or dismissed: paras. 114-117. The LSO’s interpretation of the legislation does not fit with the scheme of the LSA: para. 124.
[32] The minority also found that the LSO’s interpretation did “not produce a result that is reasonable and just and incompliance with accepted legal norms”: see paras. 125-131. The minority noted that “[r]evocation is the harshest and most serious penalty available to the Tribunal and results in the loss of professional livelihood”: at para. 126. The minority acknowledged that it was open to the legislature to create a new category of misconduct that requires immediate licence revocation, without permitting mitigating evidence from the licensee, but it was “not for this Tribunal to create such a draconian new category through the guise of statutory interpretation”: at para. 131.
[33] The minority acknowledged that the result of their finding would be that “the Tribunal lacks jurisdiction to discipline a licensee for lying in his application and that this is an unsatisfactory outcome”: at para. 133. However, the minority concluded the resulting “gap” in the legislation “must be addressed by the Legislature, not by the Tribunal”: at para. 135.
C. Applicant’s applications for re-licensing and judicial review
[34] Shortly after release of the Appeal Decision, the Applicant made inquiries to the LSO about submitting a re-licensing application. The LSO referred him to s. 27(6) of the LSA, which allows an applicant whose licence is refused to submit another application at any time based on fresh evidence or a material change in circumstances.
[35] On March 25, 2022, the Applicant submitted an “Application for Paralegal Licence Following Revocation” to the LSO, with supporting material. In May 2022, a good character investigation was authorized regarding the Applicant’s re-licensing application. In June 2022, an LSO investigator advised the Applicant by telephone that she had been assigned to the good character investigation and that his re-licensing application was being referred to a licensing hearing before the Hearing Division. After further communications between the Applicant and the LSO investigator, the Applicant advised that he was withdrawing his re-licensing application.
[36] In September 2022, the Applicant served a Notice of Application to the Divisional Court for Judicial Review of the Tribunal Decisions. Since his judicial review application was out of time, he was required to bring a motion to extend the time for filing. In November 2022, Corbett J. granted the motion (with reasons reported at 2023 ONSC 884). In December 2022, the Applicant filed an amended application for judicial review.
IV. Issues to be determined
[37] In his judicial review application, the Applicant submits that the Hearing Division did not have the jurisdiction to refuse his previously granted licence application and that he was denied procedural fairness. The Applicant asks the court to set aside the Tribunal Decisions and all associated costs orders and to restore his paralegal licence.
[38] The Applicant’s judicial review application raises the following issues:
a. Tribunal’s jurisdiction: Did the Hearing Division have jurisdiction to refuse the Applicant’s license application after a licence was issued, based on a false declaration in his application?
b. Procedural fairness: Was the Applicant denied procedural fairness?
V. Court’s jurisdiction and standard of review
[39] The Divisional Court has jurisdiction to hear this judicial review application: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1).
[40] When a court considers the merits of an administrative decision upon judicial review, there is a presumption that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 2 S.C.R. 653, at paras. 23-25. Where the reasonableness standard applies, the burden is on the party challenging the decision to show that it is unreasonable: Vavilov, at para. 100.
[41] The presumption of reasonableness review may be rebutted where the legislature has indicated that a different standard should apply by explicitly prescribing another standard or by providing for a statutory right of appeal: Vavilov, at paras. 32-33. The presumption may also be rebutted where the rule of law requires that a standard of correctness apply, for example, in cases involving constitutional questions, general questions of law central to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies: Vavilov, at paras. 53-64.
[42] The presumed standard of reasonableness is not rebutted in this case. This judicial review application concerns licensing decisions of the Tribunal. In licensing matters, the LSA does not stipulate a different standard of review or provide for a statutory appeal to court, nor does the rule of law require that a standard of correctness apply.
[43] A reasonableness review looks to whether the decision is transparent, intelligible and justified: Vavilov, at paras. 15, 81, 86 and 94-96. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at para. 31.
[44] The focus of the review is on the decision actually made by the decision maker, considered as a whole, including both the decision maker's reasoning process and the outcome. The reviewing court should, as a general rule, refrain from itself deciding the issue and should not “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem”: Vavilov, at para. 83.
[45] As indicated in Vavilov, at paras. 115-116 (set out below), the fact that the decision under review involves questions of statutory interpretation does not change the standard of review:
Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.
Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”…. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. [Citation omitted.]
[46] A different standard of review applies to questions of procedural fairness. Whether there has been a breach of a duty of procedural fairness is a question of law subject to a correctness standard of review: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30, 129, 169 and 179; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79.
[47] A tribunal is required to conduct its proceedings fairly. As outlined further below under “Procedural fairness”, the degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28.
VI. Tribunal’s jurisdiction
[48] Did the Hearing Division have jurisdiction to refuse the Applicant’s licence application after a licence was issued, based on a false declaration in his application?
[49] The Applicant submits that the Tribunal Decisions were made without jurisdiction since the LSA does not permit a licence application to be reopened and refused once granted, based on a false declaration in the application. Among other things, The Applicant says that the majority of the Appeal Division erred in determining that the Hearing Division had jurisdiction under s. 27(4) of the LSA to hear and refuse his licence application in these circumstances. Determination of that issue is a matter of statutory interpretation.
A. Principles of statutory interpretation
[50] In Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, the Supreme Court concisely set out the modern principle of statutory interpretation (as previously formulated in Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87), as follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[51] In R. v. Del Mastro, 2017 ONCA 711, 416 D.L.R. (4th) 726, at para. 61, after stating that principle, the Court of Appeal went on to state as follows:
[S]tatutory interpretation is a multi-dimensional exercise and requires a court to consider whether a particular interpretation complies with the legislative text, promotes the intention of the legislature, and produces a result that is reasonable and just, in compliance with accepted legal norms: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at pp. 7-10.
[52] In Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561, 91 O.R. (3d) 321, at paras. 23-25, after stating the principle set out in Rizzo, the Court of Appeal provided the following further guidance:
This approach to statutory interpretation – sometimes referred to as the textual, contextual or purposive approach – requires an examination of three factors: the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found.
When applying this approach, it makes sense to start by examining the ordinary meaning or meanings of the words being interpreted. The ordinary meaning is “the natural meaning which appears when the provision is simply read through”….
After considering the ordinary meaning of the language involved, the court should consider the context in which the language is found as well as the purpose of the legislation or the statutory scheme. If this analytical approach yields a plausible interpretation then the court need go no further and should adopt that interpretation. It is only when there remains genuine ambiguity between reasonable interpretations that the court should resort to other principles of statutory interpretation [Citations omitted.]
[53] In Rizzo, at para. 27, the Supreme Court provided additional guidance as follows:
It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences…. [A]n interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment [Citations omitted.]
B. Analysis
[54] As explained below, I have concluded that the Hearing Division did not exceed its jurisdiction in refusing the Applicant’s previously granted licence application.
[55] In his submissions relating to the merits of the Tribunal Decisions, the Applicant (who was self-represented) in large measure mirrors the jurisdiction analysis in the minority reasons in the Appeal Decision. The Applicant also argues (in his oral submissions) that the Hearing Division erred in finding that he deliberately made a false declaration when he answered “no” to question 13 of the application (“Have you ever been sanctioned or had a penalty imposed upon you by a court, an administrative tribunal or a regulatory body?”).
[56] Addressing the latter point first, the error that the Applicant alleges relates to a finding of fact. It was not advanced as a ground for review in his judicial review application nor was it addressed in his factum. In any case, I see no merit in his submission.
[57] In Vavilov, at paras. 125-126, the Supreme Court addressed reasonableness review of findings of fact in the following terms:
It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”….
That being said, a reasonable decision is one that is justified in light of the facts…. 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. [Citations omitted.]
[58] The Hearing Division found on the evidence (which included the Applicant’s testimony) that he deliberately made a false declaration in response to question 13 in his licence application. There was evidence before the Hearing Division to support that conclusion. Neither the majority nor the minority of the Appeal Panel would have interfered with that finding. I see no “exceptional circumstances” that would justify this court doing so either.
[59] With respect to jurisdiction, the Applicant submits that the Appeal Division erred in determining that the Hearing Division had jurisdiction under s. 27(4) of the LSA to reconsider and refuse his license application. The Applicant’s submissions can be summarized as set out below.
[60] Section 27 of the LSA sets out the requirements relating to a licence application. The LSO is required to issue a licence if the applicant meets the licensing requirements. Under s. 27(4), a licence may be refused only after a hearing by the Hearing Division on referral by the LSO. There is nothing in the language of s. 27 or elsewhere in the LSA that would justify the conclusion that it was open to the LSO to refer an application for a hearing once a licence is issued. Upon issuance of a licence, the person who made the application is no longer an applicant. That person is a licensee. The LSA permits the LSO to commence four types of licensee proceedings (relating to conduct, competency, capacity and compliance) with respect to matters arising after the licence was issued. It would be inconsistent with the LSA’s legislative scheme to find that it was also open to the LSO to refer the licensee’s already-granted license application for a hearing. The LSO’s interpretation of the legislation also unreasonably results in automatic licence revocation, the harshest penalty that could be imposed. It may also call into question the validity of the services the Applicant performed as a licensee, such as commissioning documents, which may now be void and invalid. To the extent that there is a gap in the legislation relating to the LSO’s ability to hold to account licensees who deliberately made a false declaration in their licence application, the gap must be addressed by the legislature, not the Tribunal.
[61] I disagree with that analysis.
[62] As explained below, I have concluded that it was reasonable for the majority of the Appeal Division to find that the Hearing Division had the jurisdiction to refuse the Applicant’s licence application after the license was issued, adopting the approach taken in previous decisions of the Tribunal.
[63] When addressing the Hearing Division’s jurisdiction relating to licensing hearings under s. 27(4), the textual/contextual/purposive approach to statutory interpretation requires the decision maker to consider the regulatory scheme of the LSA and the by-laws made by Convocation under s. 62(0.1) of the LSA, including By-Law 4 (Licensing). By-laws made by Convocation under s. 62(0.1) are to be interpreted as if they formed part of the statute: LSA, s. 62(2).
[64] Consistent with s. 27(2) of the LSA, one of the licensing requirements in s. 8(1) of By-Law 4 is that the applicant must be of good character. To that end, s. 8(2) of By-Law 4 provides that an applicant who makes false or misleading declarations or representations in their licence application “is deemed thereafter not to meet, and not to have met, the requirements for the issuance of any licence under the Act” (emphasis added).
[65] In the Appeal Decision, at para. 20, the majority adopted the reasoning of the hearing panel in Khan relating to the interpretation of s. 8(2) of By-Law 4. I agree that it was reasonable for the majority to do so.
[66] In Khan, the hearing panel refused to stay a licensing hearing that the LSO referred to the hearing panel under s. 27(4) after a license had already been issued. The LSO alleged that the licensee did not meet the good character requirements in s. 27(2) of the LSA and s. 8(2) of By-Law 4 since he made a misleading representation in his licence application. As a result, the LSO submitted that the application should be refused, in effect revoking the existing licence. The licensee submitted that the LSO had no jurisdiction to proceed under s. 27(4), arguing that s. 8(2) should be interpreted as referring “only to a person to whom a license has not yet been granted” and noting that “once the licence is granted, the person becomes a licensee and is no longer an applicant”: Khan, at para. 3. The licensee’s position was that proceedings resulting in penal consequences, such as a licence revocation, “must be clearly based in the statute and the By-Laws, and not only by implication” and that jurisdiction “should not be read into the legislation based upon cases and principles of statutory interpretation”: Khan, at para. 7.
[67] The hearing panel in Khan rejected the licensee’s submissions relating to the interpretation of s. 8(2) of By-Law 4, under which an applicant who makes a false or misleading declaration is “deemed thereafter not to meet, and not to have met” the licensing requirements (emphasis added). At para. 13, the hearing panel noted that if the licensee’s “position is accepted, the words ‘is deemed…not to have met’ are redundant and have no meaning.” After considering and applying the textual/contextual/purposive approach to statutory interpretation, the hearing panel in Khan found as follows, at para. 16(6):
The words “deemed not to have met” have to be given their clear meaning in the context of the purpose and object of the act, which is to protect the public and to ensure high ethical standards in the professions. The words “deemed not to have met” clearly refer to the circumstances before the licence was issued, but have effect after the licence has been issued.
[68] Based on the analysis at paras. 16-18, the hearing panel in Khan concluded that it had the jurisdiction to proceed with a hearing under s. 27(4) of the LSA, after the licence was issued, to determine whether application should be refused because the licensee failed to meet the good character requirements of s. 27(2) and s. 18(2) of By-Law 4. The language of s. 18(2), in the context in which it is used and given the purpose of the LSA, made it clear that a hearing under s. 27(4) could occur either before or after a licence is issued. In each case, the consequences of finding that there was a false declaration would be the same. In a hearing prior to a licence being issued, the applicant would be “deemed not to meet” the good character requirement, with the result that a licence would not be issued. In a hearing after the licence is issued, the applicant would be “deemed not to have met” the requirement, with the result that the applicant would no longer have a valid licence. In both cases, the result would be consistent with the LSA’s legislative purpose of protecting the public and ensuring high ethical standards in the professions.
[69] While the Khan hearing panel refused to stay the s. 27(4) licensing hearing, the panel later found that s. 8(2) of By-Law 4 did not result in automatic revocation of the licence in the circumstances of that case since the false statements were not made deliberately: Appeal Decision, at para. 97. That result was consistent with the Tribunal’s previous decision in Stewart, at paras. 25, 29, where the appeal panel found that the effect of s. 8(2) was that where an applicant makes a false declaration, the panel must revoke the licence except where the false declaration was not deliberate. In the Hearing Decision, at para. 20, the Hearing Division adopted that approach in the matter under review, which was confirmed by the majority of the Appeal Division: see Appeal Decision, at para. 22.
[70] I agree that the approach the majority of the Appeal Division took was reasonable. Whether an applicant’s false statement is discovered before or after licensing, its bearing on the applicant’s integrity and character, and the risk to the public, is the same. The interpretation that the Applicant urges would provide the LSO with authority to address the false statements in licence applications only if discovered before a licence is granted. As the majority of the Appeal Division found, such an interpretation would “[pave] the way for applicants to falsify information the Law Society considers critical to an application for a licence, in the hope that they can get away with the lie, become a member of the legal professions and continue to practise, effectively with impunity”: Appeal Decision, at para. 14. That situation would frustrate the legislative purpose of the licensing regime and impede the LSO’s ability to fulfill its statutory duty of public protection, maintenance of high ethical standards, and maintenance of public confidence in the legal professions.
VII. Procedural fairness
[71] Was the Applicant denied procedural fairness?
[72] A tribunal is required to conduct its proceedings fairly. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including: (i) the nature of the decision being made, and the process followed in making it; (ii) the nature of the statutory scheme; (iii) the importance of the decision to the individual or individuals affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choices of the procedure made by the administrative decision maker itself: Baker, at paras. 21-28.
[73] The Applicant submits that he was denied procedural fairness because the Hearing Division did not consider whether he was presently of “good character” once it determined that he was deemed inadmissible for deliberately making a false declaration in his licence application. The Applicant argues that for that purpose, the Hearing Division should have considered his conduct during the period from the time he made his licence application in January 2008 until the licensing hearing in October 2018. The Applicant also suggests that the Hearing Division could have done so if the LSO had brought disciplinary proceedings against him in a different way, which would have allowed the Hearing Division to consider his conduct while he was a licensee in determining whether he was of good character. The Applicant says that the LSO sought to predetermine the result of licence revocation by referring the matter to the Hearing Division as a licensing hearing under s. 27(4), rather than (for example) as a conduct hearing under s. 34. That choice of procedure did not accord with his legitimate expectations, according to the Applicant.
[74] I do not agree that the Applicant was denied procedural fairness.
[75] In furtherance of the LSA’s legislative purpose to protect the public and to ensure high ethical standards in the professions, s. 8(2) of By-Law 4 deems an applicant to be inadmissible as a licensee by deliberately making a false declaration in the licence application. As indicated in previous decisions of the Tribunal, when the LSO discovers what it believes to be a deliberately false declaration that comes to light after a licence has been granted, the LSO has brought licensees before the Hearing Division by referring their application for a licensing hearing under s. 27(4). At the licensing hearing, the licensee would have the opportunity to provide evidence that the false declaration was not deliberate. That process was followed in this case. It is appropriate for a reviewing court to respect and defer to that choice of procedure: see Baker, at para. 27. I see no reason why the Applicant would have legitimately expected the LSO to adopt a different procedure: see Baker, at para. 26.
[76] At the licensing hearing, the Applicant had the opportunity to provide evidence that the false declaration in response to question 13 was not made deliberately. The Hearing Division did not accept that evidence. Applying the mandatory requirement in s. 8(2) of By-Law 4, the Hearing Division refused the application. In all the circumstances, I see no unfairness that would justify this court’s intervention. Reviewed on the standard of correctness, I am satisfied the Appellant was afforded procedural fairness.
[77] As an additional consideration, it was open to the Applicant after his application was refused to bring a re-licensing application under s. 27(6), based on fresh evidence or a material change in circumstances (as the Appeal Division majority noted in the Appeal Decision, at para. 23). The Applicant in fact brought such an application but chose to abandon it and pursue a judicial review application instead. It remains open to him to apply for re-licensing in accordance with s. 27(6), should he wish to pursue it.
VIII. Disposition
[78] Accordingly, I would dismiss the application for judicial review and order the Applicant to pay costs to the LSO fixed at $2,500 all inclusive.
___________________________ Lococo J.
___________________________ Stewart J.
O’Brien J.
Date of Release: July 19, 2023
CITATION: Amendola v. Law Society of Ontario, 2023 ONSC 4123
DIVISIONAL COURT FILE NO.: 510/22
DATE: 20230719
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Lococo and O’Brien JJ.
BETWEEN:
ERSIO AMENDOLA
Applicant
– and –
LAW SOCIETY OF ONTARIO
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Date of Release: July 19, 2023