Court File and Parties

CITATION: Law Society of Ontario v. A.A., 2024 ONSC 2681

DIVISIONAL COURT FILE NO.: 204/24

DATE: 20240509

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Law Society of Ontario, Applicant/Moving Party

AND: A.A., Respondent

BEFORE: Davies J.

COUNSEL: Rhoda Cookhorn, Amanda Pinto and Andrea Luey, for the Applicant/Moving Party James Melnick, for the Respondent Cynthia Pay, for the Law Society Tribunal

HEARD: April 23, 2024

Endorsement

[1] In 2019, AA[^1] applied to be licensed as a lawyer by the Law Society of Ontario. The Law Society conducted a good character investigation because it had evidence that AA sexually abused three children in 2009. AA had a good character hearing and on July 25, 2023 the Law Society Tribunal found that AA is of good character. The Tribunal imposed one condition on AA’s license: that he not meet with minor children alone.

[2] The Law Society appealed the Tribunal’s decision. The Law Society argued the Tribunal misapprehended the evidence, failed to give adequate weight to frailties in the evidence of AA’s expert and erred in imposing a condition that is inconsistent with the finding that AA is of good character.

[3] The Law Society also sought and was granted a stay of the Tribunal’s decision pending the resolution of its appeal. The Appeal Division held that public confidence in the regulation of the profession would be irreparably harmed if the Tribunal’s decision that AA is of good character was overturned but AA had been allowed to practise in the interim.

[4] On March 15, 2024, the Appeal Division dismissed the Law Society’s appeal and upheld the Tribunal’s decision that AA is of good character. The Law Society has filed an application for judicial review of the Appeal Division’s decision.

[5] This is a motion for a stay of the Appeal Division’s decision pending the hearing of the Law Society’s judicial review application. In the alternative, if a stay is not granted and the Law Society is required to license AA before its judicial review application is heard, the Law Society is seeking an order allowing it to disclose AA’s identity to anyone who inquires about his status.

[6] The burden is on the Law Society to establish that it is in the interests of justice to grant a stay of the Appeal Division’s decision. The Law Society must show

a. there is a serious issue to be determined on its judicial review application;

b. irreparable harm will occur if the stay is not granted; and

c. the balance of convenience favours the imposition of a stay.

[7] AA concedes there is a serious issue to be decided. However, AA argues the Law Society has not established there will be irreparable harm if a stay is not granted. AA also argues the balance of convenience favours denying a stay. Finally, AA argues a stay is an equitable remedy and the Law Society is not entitled to an equitable remedy because it does not come to the court with “clean hands.” AA argues the Law Society did not act diligently in seeking a stay and, in the interim, refused to take any steps to license AA in defiance of the Appeal Division’s decision.

[8] For the following reasons, the Law Society’s motion for a stay of the Appeal Division’s decision pending the hearing of its judicial review application is granted.

a. Is there a serious issue to be determined?

[9] The threshold for finding a serious issue to be determined is low. I agree with the parties that some of the grounds advanced by the Law Society raise a serious issue to be determined. For example, the Law Society’s argument that the condition imposed on AA’s license to practise law is incompatible with the Tribunal’s finding that he is of good character has merit.

b. Has the Law Society established irreparable harm?

[10] The Law Society argues that it has an obligation to regulate in a manner that protects the public interest and there will be irreparable harm if AA is licensed before its judicial review application is heard. The Law Society also argues the public will lose confidence in its ability to regulate in the public interest if a stay is not granted.

[11] Irreparable harm is either a harm that cannot be quantified in monetary terms or a harm that cannot be cured: RJR MacDonald v. Canada, 1994 117 (SCC), [1994] 1 SCR 311 at 341, Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613 at para. 15. In other words, the Law Society must establish that refusing a stay (and allowing AA to be licensed) will so adversely affect its interest that the harm cannot be remedied if it is ultimately successful on the judicial review application and the finding that AA is of good character is overturned.

[12] AA argues the Law Society has conflated public opinion with public confidence in the legal profession and has not adduced any evidence of actual harm to the public interest.

[13] The Law Society filed pages of negative comments posted on Reddit and X (formerly Twitter) in response to media reports of the Tribunal decision and the Appeal Division decision. The Law Society also filed communications it received criticizing the decisions. The Law Society argues that those comments show “in real time” the impact of the Tribunal’s decision and the Appeal Division’s decision on public confidence in the Law Society’s ability to regulate the legal profession and public confidence in the integrity of the profession.

[14] I agree with AA that negative public reactions to media reports of a Law Society decision do not establish irreparable harm. In fact, focusing on negative comments on social media (which may or may not be based on an accurate understanding of the Law Society’s legislative mandate and jurisprudence on the good character requirements) distracts from the real issue, namely whether the public interest will be irreparably harmed if a stay is not granted. Having said that, I am satisfied the Law Society has established that the public interest will be irreparably harmed if a stay of the Appeal Division’s decision is not granted.

[15] The function of the Law Society is to ensure that everyone who practises law in the province meets minimum standards of competence and professional conduct: Law Society Act, R.S.O. 1990, c. L.8, s. 4.1. The Law Society is required to protect the public interest when carrying out all its functions, including its licensing function: Law Society Act, R.S.O. 1990, c. L.8, s. 4.2. The Law Society has the power to make by-laws about the licensing of individuals to practise law: Law Society Act, s. 62(.01). The Law Society has a duty to issue a license to applicants who meet the licensing requirements in the Law Society Act and by-laws. But the Law Society cannot grant a license to an applicant unless the applicant is “of good character”: Law Society Act, s. 27(2).

[16] The “good character” requirement is integral to the Law Society’s duty to protect the public interest. It ensures each licensee will adhere to the high ethical standards of the profession. It also ensures the public can be confident that any lawyer they retain will act with the utmost integrity and professionalism.

[17] If a stay is not granted, AA will be licensed to practise law based on the Appeal Division’s decision upholding the finding that he is of good character. If, however, the Law Society succeeds on its judicial review application and that finding is overturned, the Law Society will have licensed someone who does not meet the good character requirement. In other words, AA will have been a member of the profession and permitted to provide legal services to the public even though he did not meet the statutory requirements for licensing, which would be inconsistent with the Law Society’s obligation to protect the public interest. I find this is precisely the sort of harm that cannot be remedied after the fact.

[18] I appreciate that this decision may, at first blush, appear to conflict with the unreported decision in Law Society of Ontario v. Colangelo. In that case, O’Brien J. dismissed the Law Society’s request for a stay of the Appeal Division’s decision that Ms. Colangelo was of good character pending its judicial review application. O’Brien found the Law Society had not established irreparable harm. Justice O’Brien’s endorsement was issued following a case conference and is quite brief. There are some obvious similarities between the facts of this case and Colangelo. Both applicants had engaged in sexual misconduct involving children several years before they applied to be licensed. Both were subject to a good character investigation and hearing. Both cases involved findings of good character at the Tribunal that the Law Society unsuccessfully appealed to the Appeal Division. But each case must be decided on its own facts and its own record. The condition imposed by the Law Society Tribunal on Ms. Colangelo’s license to practise as a paralegal is very different than the condition imposed in AA’s case. And the grounds raised by the Law Society are different in each case. On the record before me, I am satisfied that the public interest will be irreparably harmed if a stay of the Appeal Division’s decision is not granted.

c. Does the balance of convenience favour granting a stay?

[19] Under this branch of the test, I must consider which party will suffer greater harm by granting or refusing a stay: Urbancorp Toronto Management Inc, at para. 20. This is not an easy decision.

[20] On the one hand, I have found the public interest and the Law Society’s duty to regulate in the public interest will be irreparably harmed if a stay is not granted. I have also found the Law Society’s appeal has merit.

[21] On the other hand, the harm AA will suffer if a stay is granted is obvious. He will be deprived of a license to practise law even though the Appeal Division has found he is of good character. The delay will likely have a financial impact on AA and his family.

[22] One additional factor that is relevant to my analysis on the balance of convenience is how long a stay is likely to be in effect. The Law Society’s judicial review application has already been set for an expedited hearing on August 22, 2024. As a result, a stay will only be in place for a few months.

[23] On balance, I am satisfied the balance of convenience favours granting a stay of the Appeal Division’s decision pending the hearing of the Law Society’s appeal.

[24] AA raised one other issue. He argues the Law Society should not be granted a stay because it has not come to the court with “clean hands.” AA argues that the Law Society refused to comply with the Appeal Division’s decision or take any steps to implement that decision even though the decision had not been stayed.

[25] The Law Society filed an affidavit from the Manager of Licensing Process and Experiential Training Programs, Gina Haros. According to Ms. Haros, it takes “several weeks” for the Law Society to arrange for a successful candidate to be licensed. There is paperwork the candidate must complete. That paperwork must be processed by the Law Society. And the candidate must pay the required licensing fees. Ms. Haros confirmed that the Law Society did not take any steps towards licensing AA after the Appeal Division’s decision because the Law Society intended to file a judicial review application and a motion for a stay.

[26] The Appeal Division released its decision on March 15, 2024 upholding the Tribunal’s decision that AA is of good character and should be licensed. The Law Society filed its judicial review application on March 27, 2024. The Law Society did not file its motion for a stay until April 5, 2024. The motion was heard on an expedited basis on April 23, 2024. Between March 15 and April 23, 2024, the Law Society did not even start the paperwork necessary to arrange AA’s licensing.

[27] I am troubled that the Law Society did not act more expeditiously in seeking a stay of the Appeal Division’s decision. Filing a judicial review application does not stay the Appeal Division’s decision. Nor does filing a motion for a stay. The Law Society should have brought an urgent motion for a stay as soon as the decision was released. In the interim, the Law Society should have at least started the paperwork to license AA so there would not be a further delay if a stay was not granted. Nonetheless, I am not satisfied the three-week delay between the Appeal Division’s decision being released and the stay motion being filed disentitles the Law Society to stay.

d. Conclusion and Costs

[28] The Law Society’s motion for a stay of the Appeal Division’s decision pending the determination of its judicial review application is granted.

[29] Given my decision on the stay motion, I need not rule on the Law Society’s request for an order permitting it to publish or disclose AA’s name.

[30] The Law Society seeks $2,142 in costs on this motion. In my view, the Law Society should bear its own costs even though it was successful on this motion because it did not act expeditiously after the Appeal Division’s decision was released. I, therefore, order no costs on this motion.

Davies, J.

Date: May 9, 2024

[^1]: The Law Society Tribunal made an order anonymizing AA’s name, his former spouse’s name and the name(s) of their child(ren). That order also prohibits anyone from publishing, broadcasting or transmitting any identifying information about AA, his former spouse or their child(ren). The parties do not agree on whether AA is required to bring a motion in this court to obtain a new order or continue the Tribunal’s anonymization order. I have scheduled a motion to decide that issue. Until that motion is decided, the parties agree that AA should not be named in this decision or any court document related to the Law Society’s judicial review application.