CITATION: Law Society of Ontario v. A.A., 2024 ONSC 5971
DIVISIONAL COURT FILE NO.: 204/24
DATE: 202401029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, O’Brien, Leiper, JJ.
BETWEEN:
law society of ontario
A. Luey and A. Pinto, Counsel for the
Applicant
Applicant
- and -
A.A.
J. Melnick, Counsel for the
Respondent
Respondent
- and -
JUSTICE FOR CHILDREN AND YOUTH
M. Birdsell and S. Ahmed, Counsel for the
Intervener
Intervener
C. Pay, Counsel for the Law Society Tribunal
HEARD in Toronto August 22, 2024
reasons for decision
O’BRIEN j.
Overview
[1] When the respondent A.A. applied to be licensed as a lawyer in 2019, the Law Society of Ontario was aware he had sexually abused three young children ten years earlier. Before a candidate may be licensed, the Law Society must be satisfied the candidate is of “good character.” Because of A.A.’s prior misconduct, the Law Society initiated a good character hearing.
[2] A.A.’s misconduct was serious. In 2009, on three occasions during a two-month period, he engaged in acts of sexual abuse of minor children, including one of his own children, that involved touching them and being touched by them while clothed. His conduct came to light when the father of one of the children confronted him. A.A. then disclosed what had happened to various people including a religious leader and the local child protection agency. At the time, A.A. was living in a foreign country with his family. He was not criminally charged. He returned to Canada where he sought therapeutic treatment.
[3] After a six-day hearing, during which A.A. and several witnesses provided evidence regarding his rehabilitation, remorse and commitment to treatment, the Law Society Tribunal Hearing Division concluded A.A. was of good character. The Hearing Division found that, although for a period after his misconduct, A.A. had minimized his behaviour, since 2017 he had been open and diligent in acknowledging his past misconduct. He was remorseful, had actively sought treatment, and had been committed to addressing his behaviour, including his failure to be candid and forthright about it.
[4] After concluding A.A. was of good character, the Hearing Division accepted A.A.’s offer of an undertaking not to meet in unsupervised settings with minor children. It added this term as a condition to his licence to practise.
[5] The Law Society appealed the decision to the Law Society Tribunal Appeal Division. The five-member panel of the Appeal Division dismissed the appeal. It found the Hearing Division did not err in its assessment of the evidence. It also rejected the Law Society’s submissions that the licensing condition was inherently inconsistent with a finding of good character and that the hearing panel denied the Law Society procedural fairness by ordering the condition without seeking further submissions from the Law Society.
[6] The Law Society now seeks judicial review of the Appeal Division’s decision. It submits:
(a) The Appeal Division erred in upholding the Hearing Division’s decision because it failed to consider the public interest in granting A.A. a licence;
(b) The Appeal Division erred in upholding the Hearing Division’s finding that A.A. was of good character when the Hearing Division also imposed a permanent licensing condition prohibiting him from being with children unsupervised; and
(c) The Appeal Division erred in upholding the licensing condition when it was ineffective and unenforceable.
[7] The Law Society also seeks an order that A.A.’s name no longer be anonymized. The Hearing Division granted an anonymization order. This court also made an interim anonymization order until the end of the hearing of the application.
[8] For the following reasons, I would dismiss the application. There is no dispute that the standard of review for the Appeal Division’s decision is reasonableness: Law Society of Ontario v. Colangelo, 2024 ONSC 2446, at para. 46. The decision was reasonable. The factors the Appeal Division considered in determining good character incorporated public interest considerations. The Appeal Division also reasonably declined to interfere with the Hearing Division’s decision to impose the condition on A.A.’s licence.
[9] I also would not interfere with the Tribunal’s anonymization order and would continue to anonymize A.A.’s name in this court’s decision. If the Law Society takes the position that new circumstances justify a variation or lifting of the order, it may bring that request before the Tribunal.
Did the Appeal Division err in upholding the good character finding because of a failure to consider the public interest?
[10] The Law Society submits the Tribunal failed to consider the Law Society’s statutory duty to protect the public interest as set out in s. 4.2 of the Law Society Act, R.S.O. 1990, c. L.8 (the Act). In its submission, this statutory duty must inform the meaning of the good character requirement in the Act. In the context of this case, that would mean having regard to the rights and safety of children.
[11] The intervener, Justice for Children and Youth, submits the Hearing Division and Appeal Division failed to give due consideration to the best interests of children. In its submission, this rendered the Appeal Division’s decision unreasonable.
[12] In the circumstances of this case, the Appeal Division did not err in declining to interfere in the Hearing Division’s decision on the basis of the public interest. I start by noting that the Law Society’s submissions to the Appeal Division do not appear to have raised the issue of a failure to consider the public interest including an express consideration of the best interests of children. The submissions were instead focused on the Hearing Division’s factual findings and the supervision term. To the extent the Law Society and intervener’s submission is that the Appeal Division had a proactive obligation to intervene in the Hearing Division’s decision to protect the public interest including the rights of children, I disagree that intervention was required in this case.
[13] Subsection 27(2) of the Act requires that applicants for a licence be “of good character.” As the Hearing Division noted, the Act does not define “good character.” The Tribunal usually considers the factors found in Claude Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 to determine whether a potential licensee is presently of good character. Those factors are: (1) the nature and duration of the misconduct; (2) whether the applicant is remorseful; (3) what rehabilitative efforts have been taken and the success of those efforts; (4) the applicant’s conduct since the misconduct; and (5) the passage of time since the misconduct.
[14] This court has expressly found the public interest, including the public interest in rehabilitation, is subsumed in the Armstrong factors: Law Society of Ontario v. Colangelo, 2024 ONSC 2446, at para. 50. There is no separate requirement to address the public interest because the Armstrong factors taken together are aimed at addressing the strong public interest in ensuring that only persons of good character are licensed to provide legal services.
[15] I agree that in any decision addressing circumstances where children could be at risk, the protection of children must be of paramount importance. Children are among the most vulnerable members of our society. They are entitled to decisions that take account of their vulnerability.
[16] However, the Hearing Division carefully considered and guarded against the potential risk to children. In applying the Armstrong factors, the Hearing Division expressly adverted to the seriousness of A.A.’s misconduct. It also recognized that the harms of sexual abuse on children are devastating. The panel stated at para. 55:
There is no dispute that the applicant committed three acts of sexual abuse involving minors in 2009. The harm to a child who is the victim of sexual abuse is undeniable and severe. The lasting and devastating impacts on the child and by extension, their families, are known.
[17] The Hearing Division also acknowledged the seriousness of A.A.’s lack of candour. It noted that although A.A.’s actions harming children took place in 2009, until 2017, he minimized his conduct, misled medical practitioners, and generally displayed a lack of candour. The Hearing Division specifically agreed with the Law Society’s submission that “the public is entitled to expect that licensees will be held to a high standard of honesty and trustworthiness” and that “[a]ny misconduct involving deception, lack of integrity or intent to mislead is troubling”: Hearing Division decision, at paras. 57-58.
[18] The Hearing Division further considered the Armstrong factors in a manner that paid careful attention to the extent of A.A.’s rehabilitation and, by implication, the risk of reoffending. It emphasized that A.A. had demonstrated sincere remorse, which was supported by the evidence of unbiased witnesses, such as the clinical assistant to his treating psychologist, his fellow group therapy member, and his religious mentor. The testimony of witnesses also supported A.A.`s genuine commitment to engaging diligently in treatment and to remaining vigilant to ensure he does not reoffend against minors. The Hearing Division considered that the last of the incidents of sexual misconduct took place in 2009 and there were no allegations of him committing similar acts since that time. His lack of candour ended in 2017. The Hearing Division found at para. 71 that “[w]hile respecting the wishes of his victims, the applicant has been as forthright and candid about his past conduct as possible and has tried to make amends to right the wrongs he committed.”
[19] The Hearing Division further found that significant time had passed since the serious misconduct took place in 2009. A.A.’s actions since 2017 showed a sincere and concerted attempt to address the historical sexual misconduct as well as his dishonesty.
[20] The Law Society would have preferred a more detailed discussion of the severe harm caused to children by the type of conduct A.A. engaged in. This is understandable, given the vulnerability of children and the importance of protecting their rights. But the Hearing Division expressly recognized the seriousness of the misconduct, emphasizing it was “severe,” with “lasting and devastating impacts”: Hearing Division decision at para. 55. It also carefully considered the risk of reoffending. It is not the role of the court to insist on a decision using language or a level of detail it would have preferred. Overall, it was reasonable for the Appeal Division not to intervene on this issue.
Did the Appeal Division err in upholding the good character finding when it also imposed a condition that A.A. could not be with children unsupervised?
[21] The Law Society submits the Appeal Division erred in upholding the good character finding while at the same time imposing a condition that A.A. could not be with children unsupervised. In its submission, the two findings are inherently inconsistent and unintelligible.
[22] I disagree. In its decision, the Appeal Division expressly acknowledged that terms and conditions cannot be imposed to “bootstrap” an applicant up to the level of good character. It relied on the principles established in Howard Steven Levenson v. Law Society of Upper Canada, 2009 ONLSHP 98 to explain the rationale: Terms and conditions can address concerns about public confidence arising from the prior misconduct. They also may provide public protection given that proof of good character is not a guarantee against recidivism. The Appeal Division concluded the Tribunal can promote public confidence by adding extra terms and conditions without improperly bootstrapping or conferring good character that would otherwise be absent. There was nothing unreasonable in this approach.
[23] Indeed, upholding the condition in this case was reasonable because the condition arose in circumstances that promoted rather than undermined A.A.’s good character. This is because A.A. offered the Law Society and Tribunal an undertaking not to meet in an unsupervised setting with minor children. The Hearing Division accepted that offer and imposed it as a term on his licence. Given that A.A. proactively offered the undertaking as a good faith effort to provide further reassurance, it may have caused a loss of public confidence to decide not to add the condition to his licence. It therefore was reasonable for the Appeal Division to decline to intervene in the decision to impose the condition.
Did the Appeal Division err in upholding the condition that A.A. could not be with children unsupervised when that condition was ineffective and unenforceable?
[24] The Law Society submits the Appeal Division erred in upholding the condition when, as a practical matter, it was ineffective and unenforceable. In its submission, it does not have the statutory authority to monitor compliance with the condition. For example, the Law Society is unable to require the appointment of a pre-approved monitor or regular reporting from A.A., nor is it able to implement a requirement for unannounced visits.
[25] It is not surprising the Tribunal’s order did not incorporate these kinds of terms because the Law Society did not provide a proposed form of order to either the Hearing Division or Appeal Division. Although it argued before the Appeal Division that it was denied procedural fairness before the Hearing Division because it was not offered an opportunity to provide further written submissions on the proposed condition, the Appeal Division dismissed this argument. It concluded the question of the undertaking was “on the table” at the hearing. The parties addressed the possibility of a supervision condition in closing submissions and there was no agreement to receive further written submissions.
[26] The Law Society also did not provide a proposed order to the Appeal Division. The intervener submits, however, that the Tribunal had an obligation to impose further conditions to protect children, even if not provided by the Law Society.
[27] In my view, it was reasonable for the Appeal Division to uphold the imposition of the condition. The enforceability of the condition should be viewed in the context of the specific circumstances of this case. Those circumstances provide a good basis to be confident A.A. will comply with the order.
[28] As set out above, the condition was imposed in response to A.A.’s voluntary undertaking. A.A. first offered the undertaking not to be with minors unsupervised to the Children’s Aid Society. A.A. then offered this undertaking to the Law Society. The Appeal Division concluded the evidence was clear that, whether through a formal undertaking or not, A.A. had been willing for many years to refrain from unsupervised contact with children. A.A.’s compliance with an undertaking over many years and willingness to continue the undertaking suggest both an intention and ability to comply.
[29] Further, the undertaking was accepted, and the condition was imposed, only after the Hearing Division had found A.A. to be of good character. It was persuaded of his good character in part because of his honest, candid and transparent approach since 2017 and his commitment to his treatment and rehabilitation. These factors all increased the likelihood he would comply with an undertaking he had voluntarily given.
[30] The condition in this case is not comparable to a chaperone requirement imposed by the College of Physicians and Surgeons, as suggested by the Law Society. Doctors have a different relationship with their patients than lawyers or paralegals with their clients. Patients face a higher risk of sexual violation including because a doctor’s professional practice often requires physical examinations in private rooms. The monitoring standard imposed on a doctor in the circumstances of a given case does not render the condition on A.A.’s licence in this case unreasonable.
[31] Overall, it was not unreasonable for the Appeal Division to decline to intervene in a condition A.A. had voluntarily complied with for years and given the conclusion he was of good character.
[32] In addition to the concern about enforceability, the intervener submits the Appeal Division had an obligation to impose additional conditions or restrictions to protect children, even if not proposed by one of the parties. For example, in its submission, there should be a condition for A.A. to continue to attend group therapy, as recommended by the psychiatrist who assessed him.
[33] The Tribunal has broad discretion regarding any conditions it imposes. Section 49.26 of the Act provides the Hearing Division “may include such terms and conditions as the Division considers appropriate.” I agree that any situation where children are at risk requires special vigilance. But in this case, the Hearing Division was fully persuaded A.A. was committed to therapy and ongoing treatment. After commenting that A.A. was open to ongoing group therapy, it wrote at para. 69: “We are persuaded that the applicant has a genuine commitment to continuing therapy and vigilance to ensure that he does not reoffend against minors.”
[34] On this record, where the Hearing Division had found A.A. was sincerely committed to therapy and to remaining vigilant, it was reasonable that the Appeal Division did not craft additional treatment conditions for A.A.’s licence.
Should the anonymization order be continued?
[35] Finally, I would not interfere with the Tribunal’s anonymization order. I would also continue the order for A.A.’s name to be anonymized in the decision of this court.
[36] A member of the Hearing Division, Peter Wardle, initially granted an anonymization order on an interim motion pending the good character hearing: A.A. v. Law Society of Ontario, 2022 ONLSTH 9. Mr. Wardle’s reasons emphasized the importance of attention to children’s rights and interests. In particular, he was concerned about protecting the privacy interests of A.A.’s children from becoming aware that their father once engaged in sexual abuse that involved their now adult sister. The order was effective until it was varied or cancelled on motion or at the good character hearing. Neither the Hearing Division nor the Appeal Division interfered with the order.
[37] When this application was started, Davies J. granted an anonymization order in this court but only until the end of the hearing of the application unless extended by the panel. At the hearing, the panel took the matter under reserve and extended the anonymization order until the release of the court’s decision.
[38] The Law Society submits it was unreasonable for the Appeal Division to extend the anonymization order. In its submission, while the condition prohibiting unsupervised access would be attached to A.A.’s name on the Law Society website, the decision explaining the basis for the condition and A.A.’s history would not. This absence of transparency would constitute a failure to protect the public interest.
[39] I would not interfere with the Appeal Division’s continuation of the anonymization order. The applicant’s name will also continue to be anonymized in the publication of this court’s decision. It was reasonable for the Appeal Division to continue the order, considering the need to balance public protection with the interests of A.A.’s children.
[40] The Law Society also submits circumstances have changed because of the passage of time and the results in this court. However, the appropriate forum to raise those issues at first instance is before the Tribunal: Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 46. The record before this court does not satisfy me that the interests of A.A.’s children have changed materially. If the Law Society raises the issue, it will remain open to the Tribunal to determine whether a variation of the anonymization order is warranted.
Disposition
[41] The appeal is dismissed. I agree with the LSO that the issues raised on this appeal were important but that does not justify a lower costs award. The LSO shall pay costs to A.A. of $10,000, inclusive. There shall be no costs for or against Justice for Children and Youth.
O’Brien, J
I agree _______________________________
D.L. Corbett, J
I agree _______________________________
Leiper, J
Released: October 29, 2024
CITATION: Law Society of Ontario v. A.A., 2024 ONSC 5971
DIVISIONAL COURT FILE NO.: 204/24
DATE: 202401029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, O’Brien, Leiper, JJ.
BETWEEN:
LAW SOCIETY OF ONTARIO
Applicant
- and –
A.A.
Respondent
- and –
JUSTICE FOR CHILDREN AND YOUTH
Intervenor
REASONS FOR DECISION
O’BRIEN, J
Released: October 29, 2024