Are the LSO’s Licensing By-Laws Procedurally Fair?

Share this post on:

In Mirza et al v the Law Society of Ontario 2023 ONSC 6727, [“Mirza] the Ontario Superior Court of Justice (“SCJ” or the “Court”) struck a balance between the requirements of administrative procedural fairness and the integrity of the legal profession. The decision introduced some new checks and balances on unilateral actions on behalf of the Law Society of Ontario (“LSO”), and in doing so, it has brought attention to the need for legislative reconsideration of the Law Society Act, R.S.O. 1990, c. L.8 [“the Act]. 

Facts

After the 2021 Barrister and Solicitor (“Bar”) Exams, the LSO discovered that a tutoring agency had obtained answer keys for the Bar exams, and had distributed them to candidates. The LSO launched an investigation using a third-party expert in examination fraud detection, who identified 150 candidates (“the Applicants”) who either intentionally, or inadvertently accessed the answer keys before taking the exams (Mirza, paras 2, 47). 

During the summer of 2022, after having received written submissions from the candidates, but without having held an oral hearing, the LSO decided that the Applicants made “false or misleading representation[s] or declaration[s]” in their examinations (Mirza, para 4). Accordingly, the LSO imposed a variety of consequences, including: voiding the Applicants’ exam results and their registration in the licensing process; prohibiting them from re-applying to the licensing process for one year; sharing this decision and the basis for it with all legal regulators in Canada; and reserving the right to conduct a further investigation into the good character of the Applicants upon their re-application to the Ontario Bar (Mirza, paras 4-6). 

The LSO maintained that these measures were within its authority as “sanctions imposed by a regulatory body”, and claimed that it relied on two provisions of its licensing by-laws (“By-law 4”) to void the licensing examinations (Mirza, para 10). The two provisions read as follows:

  • 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
  • 18(2) 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.

Issues

There were three issues before the SCJ: 

  1. Was the LSO’s decision to void the Applicants’ exam results reasonable? 
  2. Did the punitive sanctions –beyond just voiding the Applicants’ exams– without conducting an oral hearing and finding intentional misconduct violate the Applicants’ right to procedural fairness? 
  3. What is the appropriate remedy?

 

Reasons of the Court 

The Court answered the first issue affirmatively. It found that it was reasonable for the LSO to rely on evidence from the third-party expert. In turn, it was also reasonable for the LSO to find that a number of examinations had been compromised, and to void the results of those examinations (Mirza, para 17). According to the court, this was consistent with the LSO’s duty to “maintain the integrity of the exam process” (Mirza, para 20). 

The SCJ focused its decision on discussing the second issue- whether the Applicants’ right to procedural fairness was violated on these facts. In answering this question, the court referenced the five factors (“Baker factors”) set out in Baker v Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817 [“Baker”] (Mirza, para 22). These factors inform the bounds of procedural fairness in varying circumstances, (Mirza, para 22). The first and second Baker factors look at the larger statutory context and judicial structure. The third considers the impact of the decision on the affected individual(s). The fourth analyzes the legitimate expectations of the applicants. The fifth and final factor critically looks at the approach adopted by the decision maker. In Applying the Baker factors to the facts, the Court found that these circumstances warranted a high degree of procedural fairness, and in turn, required the LSO to have held an oral hearing before imposing sanctions. 

The first Baker factor looks at whether the process followed a judicial model. The second factor discusses the statutory context of the appeal (Mirza, para 23). In Mirza, the Court considered these first two factors in tandem: finding that in canceling an applicant’s registration because of a “false or misleading representation,” the LSO effectively acts upon a concern about the Applicants’ good character (Mirza, para 35). According to s. 27 of the Act, voiding an application based on good character necessarily requires a hearing (Mirza, para 25). Additionally, the Court found that all of the consequences beyond simply voiding the Applicants’ examination results were more than mere “regulatory sanctions”, and amounted to punitive sanctions, (Mirza, para 37). As such, the Applicants were entitled to a high degree of procedural fairness, and in turn, an oral hearing. 

The third Baker factor considers the impact of the decision on the affected individual[s] (Mirza, para 42). In this case, the SCJ found the impact to be grave. Since the LSO order required the Applicants to wait at least a year before re-applying to the Bar, there was a temporal inconvenience caused by voiding their registration (Mirza, para 42). Beyond this, the court found that the LSO’s disclosure sanction would stain the Applicants’ reputation in any regulated profession. In conjunction, these two considerations weighed in favour of a higher degree of procedural fairness. 

The fourth Baker factor looks at the legitimate expectations of the Applicants (Mirza, para 46). On these facts, the Court briefly concluded that the applicants would have had a legitimate and reasonable expectation in receiving an oral hearing, especially considering the punitive sanctions the LSO was looking to impose (Mirza, para 46).  

The fifth and final Baker factor considers the procedure that the administrative decision-maker adopted in the circumstances. The Court acknowledged that conducting 150 quasi-judicial hearings for each applicant individually would be an “administrative challenge” (Mirza, para 50). However, the fundamental right to procedural fairness would ultimately trump any such inconvenience. On balance, the strength of the first four Baker factors was only minimally impaired at the final stage. Thus, the additional punitive measures imposed on the Applicants without an oral hearing violated their rights to procedural fairness (Mirza, para 47–50).  

On the final issue concerning remedies, the Court upheld the voiding of the Applicants’ examination results but quashed the LSO’s punitive sanctions. It did not make any additional ruling, remitting the case back to the LSO to make a new decision in light of the Court’s reasons (Mirza, para 52).

 

Nudging the Legislature 

The SCJ’s overall conclusion in Mirza is agreeable. However, the current state of regulatory law required the Court to rely on arbitrary reasoning and jump through hoops to ground this conclusion in legal authority. This is exemplified by the Court’s application of the first and second Baker factors to the facts of this case. There, the Court explicitly acknowledged that the Act finds that “a[n oral] hearing is not required before making any decision unless the Act, regulations, or by-laws specifically require a hearing” (Act, s. 1(3)). The court also acknowledged that the two sections of By-Law 4 do not “specifically require an oral hearing” (Mirza, para 31,33). Therefore, the two sections of By-law 4 are prima facie, compliant with the Act. Nonetheless, to reach the correct conclusion, the court made several efforts to establish procedural unfairness by reversing this compliance. 

Accordingly, the court first claimed that in s.14(2) and 18(2) of By-Law 4, the misrepresentative conduct on behalf of the applicant necessarily has to be willful and advertent. Relying on this contention, the court moved on to claim that because the misrepresentation is willful/ advertent, then it necessarily engages an applicant’s ‘good character’. Since the ‘good character’ provision of the Act requires an oral hearing and the LSO failed to facilitate such a hearing, it failed to comply with the mandates of s.1(3) of the Act (Mirza, para 25). 

This line of reasoning is disagreeable because nothing in s.14(2) and 18(2) of By-law 4 signals that the two sections exclusively capture advertent/ willful misrepresentation. In fact, the use of the term “any” in both provisions signals that all misrepresentation is captured in the two sections, whether it is intentional or not. Therefore, reading advertence/ willfulness into By-Law 4 seems to be an arbitrary grasp in reaching the desired outcome. This arbitrariness breaks down the entire line of reasoning. If By-law 4 is not limited to advertent/ wilful misrepresentation and captures even unintentional misrepresentation, then there is no basis in claiming that the ‘good character’ provision of the Act is engaged. Afterall, how can a candidate’s good character be questioned if he/she is unaware of their misrepresentation? Correspondingly, if the good character provision of the Act remains unengaged, then the court is left with the LSO’s prima facie compliance with the Act. This backs the court into a corner of making an undesirable finding of procedural fairness at the first two Baker factors.

In my view, the Court reached the correct outcome in this case. The punitive measures imposed on the Applicants by the LSO railroaded a cohort of future lawyers by tarnishing their reputations without substantiated evidence of intentional wrongdoing. In doing this, the LSO denied the applicants the basic right to procedural fairness. However, the Court’s reasoning was notably arduous; which indicates flaws in the existing regulations. It would be unsurprising if the automatic voiding provisions set out in By-law 4 were found to be inconsistent with the requirements of procedural fairness again in the future. Parliament should take the Court’s “nudge” and use the decision in Mirza to review the LSO’s statutory authority and reconsider its consistency with the guarantees of due process and fairness.

Share this post on:

Leave a Reply

Your email address will not be published. Required fields are marked *