CITATION: Mirza et al. v. Law Society of Ontario, 2023 ONSC 6727
DIVISIONAL COURT FILE NO.: 22-657, 22-666, 22-670, 22-674, 22-675, 22-676, 22-677, 22-678, 22-704, 23-084, 23-134, 23-160, 23-184, 23-185, 23-186, 23-223, 23-224, 23-225, 23-226 and 23-227
DATE: 20231129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, SPROAT and O’BRIEN JJ.
BETWEEN:
Div. Ct. File No.: 22-657
FAIQA MIRZA
Faiqa Mirza, acting in person
Applicant
– and –
LAW SOCIETY OF ONTARIO
Sean Dewart, Tim Gleason and David
Respondent
LeMesurier, for the Respondent Law Society
of Ontario
AND BETWEEN:
Div. Ct. File No.: 22-666
GARGI SINGH
Marek Z. Tufman, for the Applicants Gargi
Applicant
Singh, Natasha Eleen Stewart, Justice
Agboramaka Nwabuwe, Jacinta Nkemdilim
– and –
Obinugwu and Korede Afolabi
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-670
AZHAR IMDAD ALIA
Vinidhra Vaitheeswaran, for the Applicants
Applicant
Azhar Imdad Ali, Nneoma Diana Okoro,
Harjeet Kaur, Ishu Talwar and Faisal Zaman
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-674
ISHU TALWAR
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-675
NATASHA ELEEN STEWART
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-676
JUSTICE AGBORAMAKA NWABUWE
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-677
JACINTA NKEMDILIM OBINUGWU
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-678
KOREDE AFOLABI
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 22-704
SUBAJANANY SUBRAMANIAM
Jeffrey Goldglass, for the Applicant
Applicant
Subajanany Subramaniam
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-084
FAISAL ZAMAN
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-134
NNEOMA DIANA OKORO
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-160
HARJEET KAUR
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-184
POONAM BHURANI
Allan Rouben, for the Applicants Poonam
Applicant
Bhurani, Syed Hassan Raza Safdar, Gurveer
Singh, Ali Usman Virk, Muhammad Asad
– and –
Rehan Qazi, Qamar Naeem, Haleema
Zeeshan Kiani and Alson Harold Alfred
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-185
SYED HASSAN RAZA SAFDAR
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
Div. Ct. File No.: 23-186
GURVEER SINGH
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-223
ALI USMAN VIRK
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-224
MUHAMMAD ASAD REHAN QAZI
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-225
QAMAR NAEEM
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-226
HALEEMA ZEESHAN KIANI
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
AND BETWEEN:
Div. Ct. File No.: 23-227
ALSON HAROLD ALFRED
Applicant
– and –
LAW SOCIETY OF ONTARIO
Respondent
HEARD at Toronto: October 4 and 5, 2023
SPROAT and O’BRIEN JJ.
REASONS FOR DECISION
Overview
[1] Following the completion of its barristers and solicitors licensing exams in November 2021, the Law Society of Ontario (“LSO”) became aware that the integrity of the exams had been compromised. It learned that a tutoring agency, NCA Exam Guru (“NEG”), had obtained copies of the exams. The LSO also obtained four answer sheets, referred to as “cheating keys”, which duplicated the LSO exam questions and provided answers.
[2] The LSO reviewed all the exams and identified candidates suspected of benefitting from access to a cheating key. The LSO also retained Caveon Data Forensics (“Caveon”) to analyze the answers by all candidates who wrote the November 2021 exams. Caveon reviewed all the exams and identified anomalies in approximately 10% of them. These anomalies suggested that the candidate in question, whether intentionally or inadvertently, had advance access to a cheating key.
[3] All the Applicants passed exams they wrote in November 2021 but had anomalous exam results according to Caveon’s analysis. With one exception, they were associated with NEG. Two Applicants admitted having received exam content from NEG before writing their exams. The others denied it, stating the material and notes they had access to were legitimate study aids. They offered alternative explanations for the anomalous results, such as that they were taught incorrect concepts by NEG and that they came from similar cultural backgrounds, which may have resulted in similar misconceptions about Canadian law.
[4] In July and August 2022, after receiving written submissions but without holding a hearing, the LSO licensing department concluded that the Applicants had engaged in “prohibited actions” by making “a false or misleading representation or declaration.” The LSO decided to void the Applicants’ exam results and, for all Applicants other than Ms. Subramaniam, their registration in the licensing process. The LSO further disqualified the Applicants, for one year, from re-applying to the licensing process.
[5] The LSO stated that it considered its actions to constitute a “sanction imposed by a regulatory body” such that each Applicant was required to disclose this in any re-registration application to the LSO. The LSO indicated it would “share this decision and the basis for it” with all legal regulators in Canada. Upon the Applicant’s re-registration, the LSO reserved its right to conduct a further investigation into the good character of the Applicant and refer his or application to the Law Society Tribunal for a hearing.
[6] A subsequent review decision, dated November 3, 2022, upheld the licensing department decisions. It emphasized that the licensing department did not make any determination with respect to the Applicant’s knowledge or intention, stating that the LSO must have an effective means to address the actions of candidates in the licensing process short of referring them for a good character hearing.
[7] The central issue before the court is whether it was a breach of procedural fairness for the LSO to impose punitive consequences on the Applicants without holding a hearing or making any finding of fault. The Applicants submit that the LSO initially characterized its investigations as being into their good character. It was only at the final review stage that the LSO changed course and advised that it was not making any determination as to knowledge and intent or good character. In their submission, absent a determination of fault, which can only be made following a hearing, the LSO had no right to impose punitive steps.
[8] The LSO’s principal arguments are that it was not required by statute to hold a hearing and that the Applicants’ right to procedural fairness is informed by the fact that there was no finding of professional misconduct or that they are not of good character. Further, its actions were reasonable to ensure the integrity of the licensing process pursuant to its duty to protect the public.
[9] The issues for the court are:
a. Was the LSO decision to void the Applicants’ exam results reasonable?
b. Did the LSO breach the Applicants’ right to procedural fairness by imposing punitive sanctions beyond voiding the exams without holding a hearing and making a finding of intentional misconduct?
c. What is the appropriate remedy?
[10] For the reasons that follow, we find that it was reasonable and did not violate procedural fairness for the LSO to void the Applicants’ exam results as an administrative measure. However, the further sanctions imposed by the LSO substantially impacted the Applicants to the point of being punitive. It was a violation of procedural fairness to impose that level of consequence without holding a hearing or reaching a determination that the Applicants had engaged in intentional misconduct. On the issue of remedy, we quash the LSO’s decisions other than the voiding of exam results and remit these matters to the LSO to determine next steps in accordance with these reasons.
Motion to Admit Supplementary Evidence
[11] The Applicants seek to admit additional evidence in this proceeding. The additional evidence consists of: (1) expert reports of Dr. van der Linden and Dr. Monette critiquing the Caveon report; and (2) affidavits of some Applicants identifying documents in the Record of Proceedings that were not disclosed to them during the LSO investigation. These documents include various versions of the cheating keys, a social media page, and a page of Caveon data.
[12] We find the additional evidence to be inadmissible. The evidence on an application for judicial review is ordinarily restricted to the evidence that was before the administrative decision-maker. There are limited circumstances in which the record may be supplemented. Additional evidence may be adduced to show that there was an absence of evidence on an essential point in the decision, to show a denial of procedural fairness that is not evident from the record, or to provide general background that may assist the court in understanding the underlying issues in the application for judicial review: Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086 (Div. Ct.), at paras. 13-14; Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, 93 Admin. L.R. (6th) 331, (Div. Ct.), at para. 22.
[13] The expert reports amount to substantive critiques of the Caveon report. It is not the role of the court to weigh expert evidence for the first time. To do so would require testimony from, and cross-examination of, Caveon witnesses and the expert witnesses on behalf of the Applicants. For the purposes of this judicial review the most that can be said is that the LSO, a sophisticated regulatory body, retained Caveon, which claims particular expertise in the analysis of test results and the detection of statistical indicators of cheating.
[14] Further, to the extent the Applicants’ expert reports demonstrate the type of evidence the Applicants could have adduced, with enough time and the opportunity for a hearing, it is not necessary to admit the reports themselves to make that point. The fact that the Applicants did not have enough time to obtain expert reports is evident from the existing record.
[15] With respect to the affidavits setting out the evidence that was not disclosed in the investigation, the Applicants did not put any emphasis on this evidence in their argument. The thrust of their argument was that they were entitled to an oral hearing with full disclosure. The fact that the LSO did not provide the disclosure that would be required in the event of a hearing is evident from the existing record.
Was the LSO decision to void the Applicants’ exam results reasonable?
[16] The decisions of the LSO, other than with respect to procedural fairness, which is discussed below, are subject to a reasonableness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. We find that the decision to void the Applicants’ exam results was reasonable.
[17] Counsel for the Applicants did not take issue with the fact that the exam results had been compromised and that therefore one reasonable option was for the LSO to require that all candidates re-write the exams. It follows that the LSO had every right to narrow the group that had to re-write to minimize the inconvenience. The LSO also had every right to take an expansive view of the number of candidates who should re-write. As such, it was reasonable for the LSO to decide that a candidate should re-write if the candidate’s examination results were marked by statistical anomalies and if the candidate had any known association or contact with NEG.
[18] Ms. Mirza initially denied any use of NEG. When the LSO wrote her advising that it had evidence to the contrary, her response was to claim that under the Charter, she had the right to join any group or social media. Ms. Mirza then accused the LSO of committing the offence of “spying” by asking her about NEG. The LSO could certainly draw an adverse inference from such a response. The LSO also reasonably regarded her response as containing an inadvertent, tacit admission of association with NEG. The LSO, therefore, was justified in requiring Ms. Mirza to re-write the exam.
[19] Ms. Okoro had no known association with NEG. The Caveon report, however, concluded that it was 145 times more likely than not that Ms. Okoro had the benefit of a cheating key. Whatever questions or issues might be raised with respect to the Caveon report, Caveon was an independent entity with expertise in detecting examination fraud. For the limited purpose of determining who should re-write an exam, it was certainly reasonable for the LSO to rely upon the Caveon report.
[20] In short, the portion of the LSO’s decision that voided the Applicants’ exam results was reasonable. It addressed the LSO’s duty to maintain the integrity of the exam process and did not breach the requirement of procedural fairness.
Did the LSO breach the Applicants’ right to procedural fairness by imposing punitive sanctions without holding a hearing and making a finding of intentional misconduct?
[21] The LSO submits that there was no breach of the Applicants’ right to procedural fairness. In the LSO’s submission, the procedural fairness that the Applicants were entitled to was limited since there was no finding of professional misconduct or that they were not of good character. The LSO goes on to say that the actions it took were reasonable in the public interest to ensure the integrity of the licensing process.
[22] The concept of procedural fairness is “eminently variable and its content is to be decided in the specific context of each case”: Baker v. Canada (Ministry of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 21. In Baker, at paras. 23-27, the Supreme Court of Canada set out a non-exhaustive list of five factors, that inform the content of the duty of fairness, which we will now address. In this case, applying the factors, it was a violation of procedural fairness to cancel the Applicants’ registration in the licencing process without having held a hearing.
a. Factors one and two - Statutory context and whether the process followed a judicial model
[23] Our analysis begins with a discussion of whether the process followed a judicial model, combined with a discussion of the statutory context, since those factors are intertwined in this case.
[24] The LSO submits that the process was not quasi-judicial, nor did it need to be since there was no finding that the Applicants were not of good character. We agree that the process followed was not quasi-judicial, but, in view of the statutory context, it should have been.
[25] Section 27 of the Law Society Act, R.S.O. 1990, c. L.8 (the “Act”) requires that a hearing be held before an application for a licence is refused because the applicant is not “of good character.” Specifically, s. 27(2) sets out the good character requirement, providing: “It is a requirement for the issuance of every licence under this Act that the applicant be of good character.” Subsection 27(4) requires that a hearing be held before an application for a licence may be refused: “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.”
[26] This provision supports the Applicants’ entitlement to a hearing before the LSO was authorized to void their registration. Although the LSO did not directly “refuse” their applications for a licence, it voided their registration after they had applied for a licence and completed most of the steps in the application process, including the experiential training, culminating in having written their barristers and solicitors’ exams. Caselaw from the Tribunal confirms that when the LSO does not accept that a candidate is of good character, a hearing must be held: Law Society of Upper Canada v. Sharon Ellen Shore, 2008 ONLSAP 6, [2008] L.S.D.D. No. 41, at para. 7, aff’d (2009), 2009 18300 (ON SCDC), 96 O.R. (3d) 450 (Div. Ct.).
[27] We accept the Applicants’ contention that the reason the LSO voided their registration in the licencing process was due to a concern about their “good character.” The LSO denies this, stating that it did not assess the Applicants’ good character during what was an administrative process and that the by-laws it relied on did not require a determination of knowledge or intention.
[28] There are several problems with this argument. First, although the LSO’s review decision stated that the licensing department had not assessed the Applicants’ good character, this was a reversal of the LSO’s position at the outset of the investigation. The LSO retained outside counsel to assist with the investigations. In an initial letter to each of the Applicants, counsel wrote that “the LSO has authorized an investigation into your character pursuant to s. 27(2) of the Act and by-law 4.”
[29] In the licensing department’s initial decision letter dated July 14, 2022, which concluded that the Applicants had engaged in “prohibited actions” the LSO explained that By-law 4 “provides that a licensing applicant’s good character is one of the requirements for the issuance of a licence under the Act.” At the conclusion of that letter, the LSO stated that, among other outcomes, it was considering referring the candidate’s application to the Hearing Division of the Law Society Tribunal for a hearing into whether they are of good character under s. 27(4).
[30] Second, the LSO relied specifically on two provisions of By-law 4, both of which authorize it to take steps because of a “false or misleading representation or declaration.” Subsection 14(2) of By-law 4 permits the LSO to void a licensing examination. It provides:
14(2) A person who makes any false or misleading representation or declaration on or in connection with an examination application, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for taking a licensing examination and, subject to subsection (3), the successful completion of any licensing examination taken by the person is deemed thereafter to be void.
[31] Subsection 18(2) of By-law 4 permits the LSO to void a candidate’s registration for licensure as follows:
A person who makes any false or misleading representation or declaration on or in connection with registration, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for registration, the person’s registration is deemed thereafter to be void, the successful completion of any licensing examination taken by the person is deemed thereafter to be void, the successful completion of any professional conduct course conducted by the Society taken by the person is deemed thereafter to be void and any service under articles of clerkship is deemed thereafter to be void.
[32] While the LSO claims it can make findings of a “false or misleading representation or declaration” without finding willful conduct, in its July 14, 2022 decision letter, it relied on “licensing dishonesty” in its Licensing Process Policies, to justify the finding that the Applicants had engaged in prohibited actions. Those policies prohibit candidates from engaging in “conduct unbecoming a candidate” including “licensing dishonesty.” Licensing dishonesty means “engaging in any form of dishonesty, including fraud, cheating, or misrepresentation”: Licensing Process Policies, s. 13.11. It includes being in possession of or using unauthorized information or materials prior to or during a licensing examination. While the definition does not expressly say the misconduct must be willful, the overall context of engaging in “dishonesty” impliesadvertence.
[33] The case law from the Law Society Tribunal similarly concludes that advertence is necessary, at least when the LSO is contemplating disqualifying an applicant from obtaining a licence. In Howard Steven Levenson v. Law Society of Upper Canada, 2009 ONLSHP 98, a hearing panel of the Tribunal considered s. 8(2) of By-law 4, which also includes a deeming provision but in relation to a false or misleading representation in connection with an application for a licence. The hearing panel noted s. 8(2) was similar to the deeming provisions in ss. 14 and 18. At paras. 92-93, the hearing panel found the deeming provision could not be interpreted to capture inadvertent conduct:
In our view, s. 8(2) cannot be interpreted so as to automatically disqualify an applicant from being issued a licence when his or her application is, in some respect, inaccurate, regardless of whether the inaccuracy is inadvertent. That would be fundamentally unfair in the extreme. Nor does its plain meaning compel such an interpretation.
This subsection is designed to capture those situations in which an applicant is deliberately misleading in his or her application or in connection with it.
[34] In Law Society of Upper Canada v. Robert Allen Stewart, 2012 ONLSAP 30, a Tribunal appeal panel agreed with the interpretation in Levenson saying, at para. 29, that this interpretation “confines the reach of subsection 8(2) to conduct – deliberate falsehoods – that undeniably undermines the assertion of good character.” It went on to conclude, at para. 30: “Since the hearing panel found that Mr. Stewart’s alleged misrepresentations were not deliberate, it was correct in not applying s. 8(2) so as to automatically disqualify Mr. Stewart from admission.”
[35] In short, when the LSO seeks to cancel a candidate’s registration due to a false or misleading representation after they have completed their exams, the LSO has effectively refused to licence them due to concerns about their good character. As such s.27(4) of the Act requires a hearing.
[36] The conclusion that a hearing would be required is consistent with the general principles of procedural fairness stated in Khan v. University of Ottawa (1997), 1997 941 (ON CA), 34 O.R. (3d) 535 (C.A.). The Court of Appeal found that a student had been denied procedural fairness with respect to her appeal from a failing grade on a law school exam. Although many academic appeals would not require an oral hearing, what distinguished this case was that the central issue related to the student’s honesty about whether she had completed an additional exam booklet. The court concluded that the examinations committee should not have judged her credibility adversely without affording her an in-person hearing.
[37] Similarly, the Applicants were entitled to a hearing if the LSO intended to impose punitive consequences such as voiding their registration and imposing what it termed a “regulatory sanction”. This could only be done after a finding of advertent misconduct.
[38] The LSO submits that it was not required to hold a hearing because of s. 1(3) of the Act, which provides that a hearing is not required before making any decision unless the Act, regulations or by-laws specifically require a hearing. We agree that the LSO would not have been required to hold a hearing if it had limited its response to non-punitive consequences, such as voiding the exam and allowing the Applicants to re-write it at the next opportunity. However, the LSO was not entitled to void the Applicants’ registration and treat the consequence as a regulatory sanction without a finding of fault and a hearing held pursuant to s. 27(4) of the Act.
[39] The LSO also maintains that it was entitled to take the steps it did to ensure the integrity of the licensing process and pursuant to its duty to protect the public interest. There is no dispute that the LSO has a duty to protect the public interest, as set out in s. 4.2(3) of the Act. We also agree it was important for the LSO to ensure the integrity of the examination process. To that extent, it was reasonable, as set out above, for the LSO to void the exam results and require the Applicants to rewrite.
[40] We conclude that before voiding the Applicants’ registration, which included voiding the successful completion of exams that had not been compromised and experiential learning and any exemption from that requirement, the Act required the LSO to hold a hearing. The LSO was permitted to void the compromised examination results, with an associated opportunity to rewrite the exam, without the need for a hearing.
[41] While the fact that the Act required a hearing dictates the result, for the sake of completeness, we will address the remaining Baker factors.
b. Factor three - the importance of the decision to the affected individual
[42] The LSO did not deny the decisions were important to the Applicants, although it submitted that the Applicants were overstating the impact. There can be little dispute that the consequences of the LSO’s decisions were significant. The voiding of the registration meant the Applicants (other than Ms. Subramaniam) were required to wait a year (for most, until March 2023), before re-registering. At that point, they would have to repeat their experiential training (their articles or the Law Practice Program) and re-write their exams, including any that were successfully completed before November 2021. Although most or all the Applicants had received exemptions from the experiential component because of prior experience (for example, practising as a lawyer in a different country), they would be required to re-apply for the exemption.
[43] There were also wider-ranging consequences. The LSO considered the outcome to be a “regulatory sanction” such that the Applicant was required to disclose it in any re-registration application. The LSO then reserved the right to conduct a further investigation into the Applicant’s good character in the re-registration process and refer the Applicant for a good conduct hearing at the Tribunal. In other words, after waiting a year and then completing the registration process for a second time, the Applicants could still face a hearing on the very issues that had led to the voiding of their registration.
[44] Counsel for the LSO submitted that the Applicants had simply suffered a “setback” on the path to becoming licensed. In our view, a more apt description would be that the Applicants suffered a permanent stain on their reputation. The LSO highlighted that it would share the decision with legal regulators across Canada. Similarly, the finding of a regulatory sanction could prevent the Applicants from successfully applying to a different regulated profession where this would need to be disclosed. A law firm interested in hiring an Applicant could ask questions that would elicit this history and then be dissuaded from hiring the lawyer or paralegal.
[45] The substantial and wide-ranging consequences suffered by the Applicants weigh in favour of a high level of procedural fairness.
c. Factor four – the legitimate expectations of the Applicants
[46] Because of the provisions of the Act and By-laws, as well as the case law as described above, the Applicants had a legitimate expectation that they would receive an oral hearing once the LSO was considering the wide-ranging and punitive consequences it ultimately ordered.
d. Factor five – the procedure adopted by the decision-maker
[47] Baker, at para. 27, requires that, while not determinative, a consideration of the duty of fairness should take into account the choices of the decision maker and its institutional constraints. The LSO submits it adopted an administrative procedure that did not include a hearing in the context of 150 suspected compromised exam results. To conduct 150 quasi-judicial hearings was, in its submission, untenable. The LSO relies on Michalski v. McMaster University, 2022 ONSC 2625, 470 D.L.R. (4th) 582 (Div. Ct.), in which the Divisional Court endorsed the university’s streamlined process of considering written submissions in relation to vaccination exemption requests.
[48] Michalski is distinguishable because it did not include an assessment of the applicants’ academic honesty, nor implicate their reputations. It involved the university’s process for considering vaccination exemption requests in the context of an imminent return to in-person learning. The court recognized that the university was operating under strict time constraints in the midst of the global pandemic and found the institutional constraints were an important consideration in evaluating the in-writing procedure the university had developed.
[49] However, the university did not evaluate its students for misconduct as the LSO did here with respect to the Applicants. The applicants in Michalski did not receive any record of misconduct or discipline on their transcripts and were withdrawn from their programs “in good standing.” By contrast, here, the Applicants’ academic honesty was central to the issues before the LSO. The Applicants were found to have engaged in “prohibited actions,” including “licensing dishonesty” and were required to disclose the outcome as a sanction imposed by a regulatory body.
[50] Although we agree the LSO faced an administrative challenge in this case, the challenge cannot override the Applicants’ fundamental right to procedural fairness.
What is the appropriate remedy?
[51] The Applicants request an order quashing the LSO’s decisions and restoring their licensing examination results. They also request an order prohibiting the LSO from initiating good character hearings in respect of the issues in the applications. They submit the matter should not be remitted to the LSO because the LSO’s conduct in breaching its home statute and in delaying good character hearings was so egregious as to amount to an abuse of process.
[52] Although, where an administrative decision is not upheld, it will usually be appropriate to remit it to the decision maker to reconsider its decision with the benefit of the court’s reasons, there are limited scenarios in which remitting the matter would be inappropriate. Courts may consider concerns such as delay, fairness to the parties, and urgency in resolving the dispute in the court’s exercise of its discretion on remedy: Vavilov, at paras. 141-42.
[53] The LSO’s conduct of these matters as a whole does not amount to an abuse of process that would justify an order that would prohibit it from conducting good character hearings. We recognize the LSO was confronting a difficult dilemma. It had to make a time-sensitive decision regarding how to address a compromised exam process. It also was faced with institutional constraints that made proceeding with dozens of good character hearings challenging.
[54] At the same time, the Applicants have suffered significantly. It has been almost two years since they wrote their exams. Their professional lives have been in limbo and they have undoubtedly suffered personally as a result.
[55] As discussed, the LSO deemed that the Applicants’ registration in the licencing process was void, which included voiding the Applicants’ successful completion of any licencing examinations and any experiential training or any exemption from that requirement. We quash that decision, with the exception that the compromised examinations are voided and must be re-written by the Applicants.
[56] To date, the LSO has not referred any of the Applicants to the Tribunal for a good character hearing. As Mr. Dewart pointed out, it may never do so. While any issue as to the legality of a referral is not before us, the possibility of a referral has been hanging over the Applicants for a long time. The LSO has presumably had the information it needs to determine if a referral is warranted for more than a year. If the LSO does not act promptly to decide whether a referral is appropriate, that may well be significant if there is a referral at a later date and an Applicant raises an abuse of process argument.
[57] We also order that the LSO advise the legal regulators across Canada that previously received notice of the sanctioning of the Applicants, of the fact that the court has quashed the decision of the LSO and the related sanctions it had imposed.
[58] Ms. Subramaniam submits that if the LSO requires her to re-write her exam, it will be extremely difficult to do so for health reasons. Her matter is remitted to the LSO, where she may request an accommodation for her situation.
[59] Therefore, the Applicants’ matters are remitted to the LSO to be reconsidered in accordance with these reasons.
Costs
[60] The Applicants were largely, though not entirely, successful in their applications. In our view, other than Ms. Mirza, they are each entitled to costs in the amount of $7,500 all-inclusive. While Ms. Mirza represented herself and did not file a costs outline, she obviously incurred some expenses. We award her $1,000 all-inclusive.
Sproat J.
O’Brien J.
I agree:
D.L. Corbett J.
Released: 20231129
CITATION: Mirza et al. v. Law Society of Ontario, 2023 ONSC 6727
DIVISIONAL COURT FILE NO.: 22-657, 22-666, 22-670, 22-674, 22-675, 22-676, 22-677, 22-678, 22-704, 23-084, 23-134, 23-160, 23-184, 23-185, 23-186, 23-223, 23-224, 23-225, 23-226 and 23-227
DATE: 20231129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, SPROAT and O’BRIEN JJ.
BETWEEN:
MIRZA et al.
Applicants
– and –
LAW SOCIETY OF ONTARIO
Respondent
REASONS FOR JUDGMENT
SProat and O’brien JJ.
Released: 20231129