COURT OF APPEAL FOR ONTARIO
CITATION: Robson v. Law Society of Ontario, 2023 ONCA 709
DATE: 20231024
DOCKET: COA-23-OM-0271
Thorburn J.A. (Motion Judge)
BETWEEN
Paul Alexander Robson
Moving party
(Respondent)
and
The Law Society of Ontario
Responding party
(Applicant)
Paul Robson, acting in person
Rhoda Cookhorn, for the responding party
Heard: October 23, 2023
ENDORSEMENT
[1] The moving party, Paul Robson, seeks to extend the time to file his appeal. The respondent, The Law Society of Ontario, takes the position that the request should be denied.
[2] An appeal lies to this court, with leave, from an order of the Divisional Court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a). A notice of motion for leave to appeal must be served within 15 days of making the order from which leave to appeal is sought: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.03.1(3).
[3] In this case, the decision was rendered on September 19, 2023, and the 15- day period has therefore expired.
[4] Pursuant to r. 3.02(1) of the Rules of Civil Procedure, this court may extend the time to seek leave to appeal “on such terms as are just”. The overarching principle is whether the “justice of the case” requires that an extension be given: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The court must take into account (i) whether the moving party formed an intention to appeal within the relevant period, (ii) the length of, and explanation for, the delay, (iii) any prejudice to the responding party, and (iv) the merits of the proposed appeal: Enbridge, at para. 15; Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 14; and Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, 69 C.B.R. (6th) 163, at para. 9.
[5] The merit of the proposed appeal is the most important factor: Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2.
[6] Mr. Robson claims there is merit to his appeal as there is an important issue to be decided: whether the Law Society had “reasonable suspicion” that he may have been engaged in behaviour unbecoming a lawyer. The Law Society claims there is no merit to this appeal.
[7] The background facts are as follows:
[8] Paul Robson is a lawyer. After receiving a complaint from a former client of Mr. Robson, the Law Society began an investigation into Mr. Robson’s conduct. The complainant alleged that Mr. Robson was paid $11,000 to represent him in a civil litigation matter, denied receiving $7,500 of those funds, did not do the legal work, and refused to return the funds. The complainant also alleged that Mr. Robson had borrowed money from him, performed legal work while suspended, and was uncivil.
[9] Section 49.3(1) of the Law Society Act, R.S.O. 1990, c. L.8, provides that an investigation may be commenced into a member’s conduct “if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee.” The person conducting the investigation is granted certain investigatory powers where there is a “reasonable suspicion that [the] licensee being investigated … may have engaged in professional misconduct or conduct unbecoming a licensee”: Law Society Act, s. 49.3(2).
[10] The Law Society commenced an investigation pursuant to ss. 49.3(1) and (2) of the Law Society Act. Pursuant to that investigation, Mr. Robson was asked to provide financial documents and records. Despite repeated requests, a complete response was never received.
[11] The matter therefore proceeded to a hearing. Mr. Robson took the position that the Law Society had no authority to order him to produce records as it had not demonstrated that there was “reasonable suspicion” to justify its investigation and consequent requests for documentation. Mr. Robson did not testify nor did he tender any evidence in support of his position. He claims the Law Society had the onus to demonstrate that the suspicion was reasonable.
[12] The hearing panel rejected his position, holding that: (1) the complaint constituted “reasonable suspicion” and justified the commencement of an investigation; (2) the requested materials were related to the matters under investigation; and (3) Mr. Robson’s failure to provide the materials constituted professional misconduct.
[13] Notably, the panel rejected Mr. Robson’s submission that the Law Society was required to establish a reasonable suspicion using only legally admissible evidence, holding that,
Requiring legally admissible evidence as the basis for a reasonable suspicion of possible misconduct would deprive the Law Society of “effective and efficient tools by which to achieve accountability among its members.”
… Complaints come in all kinds of forms. Some are sophisticated. Some are not. Inevitably, client complaints will often not comply with civil evidence requirements. A general requirement for only admissible evidence as the basis for the exercise of investigative powers would effectively frustrate the ability to investigate.
…
… Assuming the decision of the designated office holder to be subject to the Statutory Powers Procedure Act, RSO 1990, c. S.22 (SPPA), s. 15(1) would allow reliance on evidence “whether or not admissible as evidence in a court.”
In any event, the Request for Powers to Investigate was marked as an exhibit without objection by Mr. Robson and without any reservation that the document was not received as evidence of the truth of its contents.
[14] The Panel rejected Mr. Robson’s reliance on Law Society of Upper Canada v. Robert Boyd Statton, 2004 ONLSAP 8, at para. 59, for the proposition that “evidence” is required. The Panel distinguished this passage because it does not address whether the evidence relied upon must be admissible and on what standard.
[15] As such, the Panel concluded that a summary of a client complaint can properly be the basis on which the designated office holder can reasonably suspect that a licensee may have engaged in professional misconduct and there is no requirement that the designated office holder review the complaint.
[16] Mr. Robson appealed the Panel decision to the Law Society Tribunal Appeal Division, raising the same argument. The appeal panel found that his appeal was meritless and “there was more than sufficient evidence” for the hearing panel to conclude that the Law Society had reasonable suspicion to investigate.
[17] Mr. Robson again appealed this decision to the Divisional Court. The Divisional Court also held that the appeal was meritless as Mr. Robson “failed to identify any factual or legal errors in the Appeal Panel’s decision justifying the court’s intervention.” The Divisional Court held that,
We agree with the Appeal Panel [that] the Appellant’s appeal is meritless and “there was more than sufficient evidence” to justify the hearing panel’s conclusion that the Law Society had a reasonable suspicion to exercise its investigative powers. Further we agree with the Appeal Panel that the Appellant was afforded a fair hearing and was given ample opportunity to defend the application before the hearing division.
[18] He now seeks leave to appeal this same issue to this court.
[19] The Law Society is required to have information that a member may have engaged (not has engaged) in professional misconduct in order to conduct an investigation. This must be viewed in the context of the overall regulatory responsibility of the Law Society and its obligation to assure the public that the lawyers it supervises are in fact at all times acting properly.
[20] As noted by Mr. Mercer in Law Society of Upper Canada v. Rita Anne Hartmann, 2012 ONLSHP 177, at para. 45, in his comprehensive review of this issue,
While there must be a proper basis for requiring lawyers to co-operate with regulatory investigations, effective regulation in the public interest would be materially impaired if lawyers were only required to co-operate when their regulator has “evidence of each essential element of the [breach], which, if believed by a [hearing panel], could result in a [finding of professional misconduct]”… It is [therefore] not surprising that the analysis required for a committal for criminal trial is different than the analysis required for authorization of investigative powers in the regulatory context.
[21] For these reasons, I see no merit to this appeal and the motion for leave to extend the time to file the appeal is therefore dismissed. While I have concerns about the intent to appeal within the relevant time, the failure to adequately explain the delay, and ensuing prejudice to the Law Society, I need not deal with those issues in view of my conclusion that there is no merit to this appeal.
[22] Given that the moving party has now sought to appeal on this same ground three times, without success, I order substantial indemnity costs payable to the Law Society, in the amount of $4,500 all inclusive.
“Thorburn J.A.”