CITATION: Mundulai v. Law Society of Ontario, 2024 ONSC 959

DIVISIONAL COURT FILE NO.: 533/23

DATE: 20240313

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C., Edwards, D., and Shore JJ.

BETWEEN:

A. MUNDULAI

Applicant

– and –

LAW SOCIETY OF UPPER CANADA

Respondents

LAW SOCIETY TRIBUNAL

Self represented

Elizabeth Glasbergen for the Respondent Law Society of Ontario

Cynthia Pay, for the Law Society Tribunal

HEARD: January 22, 2024

REASONS FOR DECISION

McWatt A.C.J.S.C.

Overview

[1] The Applicant was originally licenced to practice law on March 24, 2005. He has a lengthy discipline history, which resulted in the revocation of his licence to practice law following a finding of ungovernability in 2012.

[2] He now seeks judicial review of the Order of the Law Society Tribunal Appeal Division (the “Appeal Division”) affirming the Order of the Hearing Division of the Law Society Tribunal (the “Hearing Division”), dated September 19, 2022, denying his application for licensing.

Background

[3] The Applicant was born in 1969 in Mozambique. He was called to the bar in 2005 after graduating from the University of Windsor law school. After his call, the Applicant practiced on his own in the areas of family law, criminal defence, and estates.

[4] He was first suspended for one month in early 2008 and ordered to pay costs of $1,500 for failing to co-operate with a Law Society investigation.

[5] In 2010, the Applicant was found to have engaged in professional misconduct for breaching a bail condition that he must practice only criminal law – and under supervision. He was again suspended from practice, this time for six months and was ordered to pay costs in the amount of $14,000. Also in 2010, the Applicant was suspended for four months and ordered to pay costs of $15,000 for failing to respond and cooperate with seven Law Society investigations focused on him.

[6] In 2011, the Applicant was charged, and later convicted of driving while impaired by alcohol and failing to provide a breath sample. He did not disclose the charges to the Law Society. In 2013, only after his licence to practice law had been revoked in 2012 and he was attempting to apply for re-licensure, did he disclose the impaired driving convictions to the Law Society.

[7] In 2012, the Applicant was found to have engaged in professional misconduct for failing to treat the court with courtesy and respect, failing to conduct himself in such a way as to maintain the integrity of the profession, and failing to deliver a client file to a client. His licence was revoked for ungovernability.

Applicant’s Outstanding Debts

[8] In November 2018, the Divisional Court ordered the Applicant to pay $5,000 to the Law Society in costs. As of August 2021, the applicant owed the Law Society $22,609.28 in unpaid costs and accumulated interest, plus $4,000 to the Compensation Fund, and $12,500 in deductibles to LawPRO.

[9] The Applicant has also been a party in 13 civil proceedings, and despite indicating there were no outstanding cost awards or damages because of this litigation, the Law Society investigators later determined that he still owes $7,839.33 to Legal Aid Ontario, $13,727.14 in damage awards against him, and $2,250 in costs in another civil matter. The Applicant also has six malpractice claims reported against him resulting in indemnities paid by LawPRO in the amount of $471,800.

Applicant’s Conduct Since Revocation of Licence

[10] Since his licence was revoked, the Applicant has had several criminal charges laid against him, which resulted in convictions. As referred to above, the Applicant was convicted of impaired driving and refusing a breathalyzer test on February 21, 2013.

[11] On July 4, 2019, the Applicant was charged with four counts of domestic assault, one count of unlawful confinement, and one count of sexual assault. In November 2020, he was found guilty of one count of domestic assault and one count of unlawful confinement. He received a suspended sentence, was placed on a term of probation for 18 months, received a 10-year weapons prohibition, and was ordered to provide a sample of his DNA to the National DNA Databank.

Procedural History

Applicant’s First Re-Licensing Application – 2015

[12] On May 27, 2015, the Applicant applied to the Law Society to be re-licenced. The Law Society commenced an investigation into his character pursuant to s. 27 of the Law Society Act, R.S.O. 1990, c. L.8, s. 4.2, Schedule B. In December 2016, the Law Society filed a Notice of Referral for Hearing with the Law Society Tribunal.

[13] The Applicant sought to have the Notice of Referral quashed on November 20, 2017. At the hearing, the Applicant instead agreed to a dismissal of his Licensing Application without costs. But despite signing a consent to that effect, he later claimed that he made no such agreement and requested that only the Notice of Referral be dismissed, and not his entire Licensing Application. The Tribunal refused, and as a result, the Applicant moved for judicial review and an order in mandamus which was dismissed by the Divisional Court in 2018.

Applicant’s Second Re-Licensing Application – 2019

[14] On February 14, 2019, the Applicant applied again for re-licensing. The application was referred for an investigation and, as a result, a good character hearing was recommended.

Good Character Hearing: Hearing Division Decision – September 19, 2022

[15] On September 19, 2022, the Hearing Division found that the Applicant was not presently of good character and denied his application for re-licensing.

[16] The Hearing Division first dealt with whether the Applicant breached s. 8(2) of By-Law 4. The Panel found that in his licensing application, dated December 15, 2018, the Applicant failed to disclose that he had outstanding civil judgements in favour of Legal Aid Ontario for damages and costs. Further, he failed to disclose that he had disobeyed an order of the court by not disclosing that he had previously been disciplined by the Law Society, that he was the subject of an insurance claim under a policy for professional liability insurance, and that he did not notify the Law Society that he became the subject of criminal proceedings in 2019. The Panel found that the Applicant had attempted to mislead the Law Society by making false or misleading statements when he failed to disclose facts that were prejudicial to his licensing application.

[17] The Hearing Division found that the 2020 convictions for domestic assault and forcible confinement spoke to serious moral findings against the Applicant.

[18] The Panel also noted that there was little evidence before them of remorse for either the conduct that led to the revocation of his licence or his most recent criminal conduct. They noted that the pre-sentence report filed in his criminal trial set out that the Applicant “minimized his responsibility for his actions, projecting blame on the victim.”

[19] The Panel also found that there was little in the record to suggest that the Applicant had taken steps towards rehabilitation.

[20] Since the proven misconduct, the Panel found the Applicant had not been forthcoming about the criminal charges laid in 2019 resulting in a breach of s. 8(2) of By-Law 4. Further, the Applicant owed more than $40,000 to the Law Society and various other parties in costs awards and judgments, yet he told investigators there were no unpaid judgments against him, again also in breach of s. 8(2) of By-Law 4. The Panel also considered evidence that the Applicant was abusive during the investigation process and that he failed to treat the hearing process with respect.

[21] Finally, regarding the passage of time since the Applicant’s misconduct, the Hearing Division found that although a significant time had passed since his licence had been revoked, the Applicant had failed to demonstrate evidence of a genuine and complete change in his character for the better.

[22] Based on all of this, the Panel concluded that the Applicant had not met his burden, on a balance of probabilities, that he was currently of good character for the purposes of licensure.

[23] The Panel awarded the Law Society $13,168 in costs.

Appeal Division Decision – August 17, 2023

[24] The Applicant appealed the decision of the Hearing Division on the following grounds:

1. The Panel denied him procedural fairness by prematurely ending his cross-examination of the Law Society investigator before it was completed;

2. The Panel misapprehended the evidence relating to his character witness;

3. The Panel failed to correctly apply the legal test for assessing character;

4. The Panel made findings that were unsupported by the evidence with respect to a transcription of his Law Society interview, a civil judgement against him, and his demeanor during the Law Society investigation; and

5. The Panel failed to take judicial notice of the findings of misconduct on the part of the Law Society in prior discipline decisions.

[25] In its decision, dated August 17, 2023, the Appeal Division found the appeal meritless and dismissed it.

Issues

[26] The issues before this Court as submitted by the Applicant are mostly the same as before the Appeal Division. They are:

1. Did the Appeal Division apply the correct standard of review?

2. Did the Hearing Division err in law, misapprehend the evidence, or act without evidentiary basis when it found at the Applicant breached s. 8(2) of By-Law 4?

3. Did the Appeal Division err in its application of the Armstrong Test?

4. Did the Appeal Division err in affirming the Hearing Division’s application of the legal test when assessing the probative value and weight of the Applicant’s character witnesses?

5. Did the Appeal Division err in law when they found that the Hearing Division did not deny procedural fairness by ending the Applicant’s cross examination of the Law Society investigator?

6. Did the Appeal Division err in affirming the Hearing Division’s consideration of the interview transcript which was transcribed by the Law Society investigator?

7. Did the Appeal Division err in failing to find a lack of basis for findings of fact made by the Hearing Division and in failing to take judicial notice of the Appeal Division and Divisional Court findings in Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2011 ONLSAP 23, 2011 ONLSAP 0023 and Mundulai v. The Law Society of Upper Canada, 2014 ONSC 2708?

[27] Despite the formulation of the issues by the Applicant above, this is an Application for Judicial Review, and therefore the issue before this Court is whether the decision of the Appeal Division was reasonable.

Court’s Jurisdiction

[28] The court has jurisdiction to hear this judicial review under ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Standard of Review

[29] As already noted, this Court’s standard on this Review is reasonableness, pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[30] There is no standard of review for procedural fairness issues. Our courts have determined that a matter is either procedurally fair or it is not and have used the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 to measure fairness (Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 5142 at paras. 69 and 70; G.S. v. S.B., 2023 ONSC 5646 at paras. 17 and 18; Schuur v. Sas, 2023 ONSC 2852 at para. 26). This Court is reviewing the Appeal Division’s decision about the alleged procedural fairness issues at the Hearing Division. In applying the Baker factors to the alleged procedural fairness issues, whether at the Hearing Division or the Appeal Division, the outcome in this decision would be the same.

Analysis

[31] The Law Society has an obligation to regulate the legal professions in the public interest, including licencing. It has a duty to ensure that only applicants of good character are granted licences to practice law or provide legal services (LSUC v. Davidovic, 2017 ONLSTH 47; LSUC v. Sharon Ellen Shore, 2008 ONLSAP 6; Gaya v. LSO, 2022 ONLSTH 53).

[32] I am not convinced that the decision was unreasonable or that there was procedural unfairness. As a result, the application is dismissed for the following reasons.

[33] First, the Applicant submits that the Appeal Division applied an incorrect standard of review when it did not use the test set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 50 and Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, which dictate that administrative tribunals are reviewable on a reasonableness standard.

[34] The decision of the Appeal Division was an appeal from a hearing. At paragraphs 5 and 6 of their decision, the Appeal Division applied the appellate standard of review, which was the appropriate test:

[5] The applicable standard of review on appeals from the Hearing Division is correctness on questions of law, palpable and overriding error for questions of mixed fact and law where the legal principles is not readily extricable, and error in principle or a clearly unfit penalty, in respect of a penalty decision. Deference is owed to the findings of fact of the trier of first instance.

[6] However, an administrative tribunal is required to adhere to principles of natural justice and procedural fairness, and failure to do so will result in the decision being set aside. Issues of deference do not arise in determining the issue (Watson v. Law Society of Ontario, 2023 ONSC 1154 at para. 67). As a result, the standard of review does not typically arise, unless there are findings of fact underlying the assessment of what happened and therefore whether there was a breach of procedural fairness.

[35] With respect to the second issue raised by the Applicant, the Appeal Division found that the Hearing Division did not err in its assessment of the evidence or its application to the law when concluding that the Applicant had breached s. 8(2) of By-Law 4.

[36] The Appeal Division correctly set out the law. Section 8(2) of By-law 4 provides, in part, that “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 a licence under the Act.”

[37] The Appeal Division’s decision with respect to the finding of facts and the application of the facts to the law was reasonable. There was a strong evidentiary basis before the Hearing Division for them to conclude that the Applicant breached s.8(2) of By-Law 4, including that Mr. Mundulai misled the Law Society about his outstanding civil judgments; he breached a court order; he had been disciplined by a regulator; he had been the subject of an insurance claim; and he failed to update the Law Society when he was criminally charged in 2019 as he was obligated to do.

[38] The Applicant’s third ground of appeal claims that the Hearing Division’s application of the ‘Armstrong Test’ was incorrect (LSUC v. Armstrong, 2011 ONLSAP 1, at para. 13 [“Armstrong”]). This “good character” requirement outlined in section 27(2) of the Act, calls for the protection of the public, maintaining high ethical standards, and maintaining public confidence in the legal profession and its ability to regulate itself (Gaya, at para. 8). Good character is determined as of the date of the hearing (Preyra, Re, 2003 48959 (ON LST), at para. 99). In assessing whether an applicant whose application is referred to the Tribunal meets the good character requirement, several factors must be assessed including the nature and duration of the misconduct, whether the applicant is remorseful, what rehabilitative efforts, if any, the applicant has taken and the success of such efforts, the applicant’s conduct since the proven misconduct, and the passage of time since the misconduct. The list of factors to be considered is non-exhaustive.

[39] The Appeal Division found that the Hearing Division carefully reviewed each of the factors and did not mis-apply the Armstrong Test. The Appeal Division reasonably concluded that the Hearing Division’s assessment of the evidence, including the Applicant’s lack of remorse; his failure to make any effort to rehabilitate himself; the serious nature of the prior misconduct; and his deliberate efforts to mislead the Law Society during the investigation process, was correct. The Appeal Division reasonably found that the Applicant had failed to identify any error in principle in the Hearing Division’s reasoning.

[40] Fourth, the Applicant submits that the Hearing Division wrongly assessed the probative value and weight of his character witness. I disagree. The Appeal Division’s finding that the Hearing Division committed no error in principle in terms of its approach to this issue is reasonable.

[41] As noted by the Appeal Division, the Hearing Division is owed deference in its decision to afford the witness’ (Mr. Amoah) written reference little weight because he attempted to withdraw it from the hearing. This character witness was not strong, and Mr. Mundulai’s application was wanting in many other respects.

[42] The Appeal Division found that the deficiencies in the evidence of the character witness formed only a small part of the Hearing Division’s analysis of good character, and that the Applicant could have called his witness at the hearing to give evidence but chose not to.

[43] The Applicant has not demonstrated that the Appeal Division’s decision on this issue was unreasonable.

[44] The Applicant also complains that he was not afforded procedural fairness before the Hearing Division when the Chair terminated his cross-examination of the Law Society’s Investigator.

[45] The Appeal Division found the Hearing Chair appropriately exercised its discretion under rule 11.9 of the Tribunal Rules of Practice and Procedure to limit cross-examination where it led to attempts by the Applicant to have the witness comment on his state of mind, or where Mr. Mundulai was attempting to give evidence himself during the questioning. The Appeal Division noted that there is no unfettered right to cross-examine, and it is not uncommon for hearing panels to set limits on cross-examination to control the process. The Applicant was specifically directed by the Chair multiple times to move on to other areas because some of his questions were improper and repetitive. The Applicant deliberately ignored the Chair’s directions on multiple occasions. The Chair was justified in ending the cross-examination of Ms. Iwanowich which he had deemed to be inappropriate. The process was fair.

[46] The Applicant complains that the Appeal Division erred in affirming the Hearing Division’s decision to admit his interview transcribed by the Law Society investigator into evidence.

[47] The Appeal Division found no error in the Hearing Division’s decision given that the Applicant never objected to the transcript being marked as an exhibit. He has never claimed the transcript is inaccurate. The transcript and the recording of the transcript were disclosed to him. The Law Society also offered to play portions of the transcript and allow the Hearing Division to determine for themselves what was said, but the Applicant did not accept the offer. Based on these considerations, the Appeal Division’s decision was reasonable.

[48] With respect to annotations on the transcript by the investigator, the Applicant has argued that they are hearsay evidence and inadmissible. However, the Applicant did not object to the transcript being marked as an exhibit, and it is clear from her testimony that the annotations were the evidence of the investigator, like any notes she may have made during an interview. The Appeal Division’s conclusion that the Hearing Division did not err in admitting this evidence, is reasonable.

[49] Penultimately, the Appeal Division found no merit in the Applicant’s argument that the Hearing Division did not have an evidentiary basis to find that he had been abusive during the investigation. The Appeal Division found that there was a sufficient evidentiary record, both in the investigator’s Affidavit and her oral evidence, to support the Hearing Divisions’ findings. I agree.

[50] Finally, the Applicant complains that the Appeal Division failed to find that the Hearing Division did not take Judicial Notice of other cases where the Law Society has acted unfairly towards him both in the past and during the good character investigation.

[51] The purpose of a good character hearing, however, is to assess whether an applicant is currently of good character. As the Appeal Division noted, what the Law Society has or has not done in the past with a lawyer is not relevant to whether that lawyer is currently of good character. It was reasonable for the Appeal Division to find that the Hearing Division made no error in principle by summarizing the Applicant’s prior discipline decisions, but then turning to focus instead on the real issue before them of the revocation of the Applicant’s licence for ungovernability.

ORDER

[52] The application is dismissed.

COSTS

[53] The Applicant was asked and agreed with the Costs submissions of the Respondent. As a result, the Applicant shall pay the Respondent $4,149.36 in costs, including HST and Disbursements.

McWatt A.C.J.S.C.

I agree _______________________________

Edwards, D. J.

I agree _______________________________

Shore J.

Released: March 13, 2024

DIVISIONAL COURT FILE NO.: 533/23

DATE: 20240313

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C., Edwards and Shore JJ.

BETWEEN:

A. MUNDULAI

Applicant

– and –

laW SOCIETY OF UPPER CANADA

Respondents

REASONS FOR DECISION

MCWATT A.C.J.S.C.

Released: March 13, 2024