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2018 Annual Report

Five Years in Review

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Table of ContentsMessage from the Chair 4

Tribunal at a Glance 6

Notable Cases 8

Advertising 11

Transparency 12

The New Rules 14

Adjudicator Education 16

Chair’s Speaking Engagements 17

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Table of Contents

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Five years of the Law Society Tribunal This was the fifth year of the Law Society Tribunal as a quasi-judicial body, independent from the Law Society of Ontario, that hears and adjudicates cases about Ontario lawyers and paralegals.

Since 2014, we have been fulfilling our role of making well-reasoned and just decisions in the matters before us, protecting the public and maintaining public trust in the legal professions. Every year, we have developed our jurisprudence, improved our processes, and learned more about what can make this administrative tribunal the best it can be. This past year has been no exception.

The choices we made throughout 2018 were shaped by our commitment to our four core values: Quality, Timeliness, Transparency and Fairness. I am pleased to share the following highlights.

Quality: To further improve the quality of our service, we created the new staff role of File Management Coordinator (FMC). FMCs are each responsible for specific files, following them from beginning to end, providing seamless and consistent service to parties and representatives before us. FMCs have greater familiarity with the details of each of their files, allowing for better and faster responses to inquiries from parties and adjudicators.

In seeking out replacements for several excellent adjudicators who retired last year, we assessed areas of expertise and specialization among the Tribunal members to see which areas could be augmented to help us better adjudicate the cases before us.

Our recruitment process was rigorous and highly competitive; applicants submitted writing samples, and those interviewed wrote sample reasons based on materials and a video of a mock hearing. We have added five new adjudicators to our roster who bring valuable adjudicative experience and expertise in, among other areas, mental health and Indigenous justice. We also added three French-speaking adjudicators in order to improve access to justice for Franco-Ontarian lawyers, paralegals and witnesses.

You’ll read more about our continued efforts to improve the quality of our work in the coming pages.

Message from the ChairDavid A. Wright

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David A. WrightChair of the Law Society Tribunal

has real-world effects that can be felt by all parties involved, both personal and financial. Tribunal staff have worked hard this year to ensure that there is no backlog of cases, allowing for the prompt scheduling of all urgent and non-urgent matters.

The statistics we gathered in 2018, highlighted on the next page of this report, show that our processes are running smoothly and efficiently, with the average time from the date a case is authorized by the Proceeding Authorization Committee (PAC) to the closing of that file coming in at under twelve months total, with summary files closing within three months of PAC authorization.

Transparency: As part of our commitment to transparency, we significantly improved the methods we use to gather data about case processing, which is one of the simplest ways for the public, the media, licensees, or the Law Society to oversee the Tribunal’s work.

By implementing a new case management system that expands our ability to collect more meaningful numbers, we’ve been able to track even more aspects of Tribunal operations, especially those related to case outcomes.

As a result of these improved statistical methods, the data we publish from year to year will be more nuanced, contextualized, detailed and representative of what really happens at the Tribunal. This will make it easier for those outside the Tribunal to see where we are succeeding in our mandate and where we can improve.

This is only one of several strides the Tribunal took this year relating to transparency – the rest are summarized elsewhere in this report.

Fairness: One of 2018’s most important projects was a revamp of the Rules of Practice and Procedure, which had been recommended in various reports, and was undertaken with the goal of making the Rules more reflective of the Tribunal’s standards of accessibility, proportionality, and fairness. With continued adjustment and consultation, we look forward to introducing the new Rules in 2019.

Ensuring fairness at the Tribunal is a thread that runs through this report, and you will find it referenced in several sections, including Notable Cases, Advertising and Transparency.

An organization is only as strong as the people within it, and I’d like to thank our staff and adjudicators for all the hard work they’ve put into the Tribunal this year and in past years. I also invite any feedback or suggestions, either directly or through the Tribunal Committee or the Chair’s Practice Roundtable.

Over the last year we have been continuously guided by our commitment to quality, timeliness, transparency, and fairness, introducing improvements that will serve the Tribunal well as it pursues its vital mission in the years to come.

"Since 2014, we have been fulfilling our role of making well-reasoned and just decisions in the matters before us, protecting the public and maintaining public trust in the legal professions."

Timeliness: Timeliness is inextricably linked with the just and efficient working of the Tribunal, and

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Tribunal at a Glance

Raj Anand Vice-Chair, Hearing Division

Christopher D. Bredt Vice-Chair, Appeal Division

Isfahan Merali Chair, Tribunal Committee

Paul M. CooperVice-Chair, Tribunal Committee

Barbara J. MurchieVice-Chair, Tribunal Committee

2018 in Review

146 files closed

99 lawyer files closed47 paralegal files closed

Hearing Type

23

95

727

32

104

Lawyers

Paralegals

Practice review

Terms and conditions

Types of Penalties

Permission to surrender licence

Revocation

Fine

Reprimand

Suspension

Conditional fine

Applications by the Law Society

9 Abandoned or withdrawn

91 Granted in full

10 Dismissed

7 Granted in part

3

14

80

12

14

18

9

9

Full hearing days

Written hearings

Half hearing days

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Practice review

Terms and conditions

Fine

David A. Wright

Tribunal MembersRaj AnandVice-Chair, Hearing DivisionChristopher D. BredtVice-Chair, Appeal DivisionElected Lawyer Benchers (26)Elected Paralegal Benchers (2)Appointed Lay Benchers (7)Ex officio Benchers / Former Treasurers (9)Lawyer Appointees (11)Paralegal Appointees (3)Lay Appointees (9)

Chair

Office of the ChairExecutive Assistant to the ChairCommunications Officer Tribunal Counsel (2)

Tribunal OfficeRegistrar Bilingual File Management Coordinators (2)File Management Coordinators (2)AdministratorScheduling CoordinatorPublication Coordinator

Tribunal CommitteeIsfahan Merali, ChairBarbara J. Murchie, Vice-ChairPaul M. Cooper, Vice-ChairCommittee Members (11)

LawyersParalegals

1st PMC Reasons on Penalty

Reasons on Finding/Determination

Decision on Penalty

Decison on Finding/Determination

Last Hearing/ Submissions

1st Hearing1st PHC File Closed

50

100

150

200

250

300

Average Days from PAC Authorizationto Milestones in the Hearing Process

400

350

450

244

397

29

43

82

156

124

2

23

175

342

183

307

187

3

44

2

26

353

235

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93Responsibility to the Law Society was the most common category of misconduct file, accounting for 28% of all conduct files opened in 2018.

The second most common category was failure to serve clients, accounting for 12% of all files.

Tribunal Structure

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Hearings that led to the development of Tribunal jurisprudence in 2018

Notable Reasons

Invitations to Attend Without a Finding of Misconduct Law Society of Upper Canada v. Sokoloff, 2018 ONLSTH 16

Ms. Sokoloff brought a motion, which was not opposed by the Law Society, to convert her conduct hearing to an invitation to attend.

In most earlier instances of licensees requesting to convert proceedings to an invitation to attend, the motion was heard or considered after the panel found that the licensee’s actions constituted misconduct. In this case, the motion was heard or considered before the panel decided whether there was misconduct. The panel engaged in a review of recent Tribunal jurisprudence in proceedings which were converted to an invitation to attend prior to a finding of professional misconduct, as opposed to post-finding. The panel concluded that the same requirement for exceptional circumstances applied in both cases.

In this case, the circumstances met that high threshold, given that the alleged misconduct was at the lower end of seriousness, the parties agreed that Ms. Sokoloff could benefit from receipt of the panel’s advice on the regulatory issues raised, there had been several new developments since the proceeding was authorized by the Proceedings Authorization Committee and the public interest could be served without a determination on the merits.

Criteria for Re-licensing Former Licensees Puchiele v. Law Society of Upper Canada, 2018 ONLSTH 19

Mr. Puchiele applied for a licence to practise law. His licence had been revoked in 2011, after he admitted to knowingly assisting fraudulent or dishonest conduct in nine real estate transactions, failing to be honest and candid with his lender clients, and failing to serve his lender clients.

There are two lines of Tribunal cases assessing whether a licensee whose licence has been lost meets the criteria to get his or her licence back. In previous cases, the panel used one, the other, or some mix of the two to determine eligibility for re-licensing. The panel here proposed a method of reconciling the two lines, noting that both address the same fundamental considerations, including the principle that it is more difficult to obtain a licence if prior misconduct occurred while a legal professional

The panel found that the key considerations in a re-licensing case, as in a licensing case, include the nature or duration of the misconduct, the applicant’s conduct since, remorse, the efforts the person has made at rehabilitation and the passage of time since the events.

The panel found that Mr. Puchiele now met the test for good character, and so was eligible for re-licensing.

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Hearings that led to the development of Tribunal jurisprudence in 2018

Principles for Awarding Costs Law Society of Ontario v. Perrelli, 2018 ONLSTH 80

Mr. Perrelli entered an agreed statement of facts and admitted that he engaged in professional misconduct by sending an offensive text message to a client, failing to deposit funds into a trust account, failing to serve by missing two court dates and a client appointment and failing to cooperate with two investigations of the Law Society. The panel accepted the joint submission of a four-month suspension, but when the parties made widely different costs submissions, the panel, recognizing that the Tribunal’s costs awards

have tended to vary greatly, invited the parties to make submissions on principles to be applied in costs awards in favour of the Law Society.

In order to bring coherence to Tribunal costs awards, the panel proposed a two-step approach: • to establish a general range, taking into account key litigation steps including pre-hearings, the length of the hearing

and the work product of the Law Society representative(s); and • to determine a place within that range for the case at hand based on:

- the complexity of the case; - any conduct of the parties that lengthened or shortened the proceedings; - any financial hardship that affects the ability of the licensee to pay; and - any other factors particular to the case.

Applying those principles to this case, the panel first canvassed costs awarded in procedurally similar cases involving straightforward facts, an initial failure to respond, resolution by way of an agreed statement of facts and joint penalty submission following pre-hearings. As the range of costs awarded in such cases in 2018 was between $2,000 and $12,500, the panel held that a reasonable starting point for cases involving an admission of misconduct and joint penalty submission was $7,500. Adjusting for case-specific factors (here, Mr. Perrelli’s financial circumstances) the panel awarded costs of $6,000 with two years to pay.

Duty to Accomodate Based on Mental Disability Law Society of Ontario v. Burtt, 2018 ONLSTH 111

The Law Society was aware from prior proceedings that Mr. Burtt had been diagnosed with clinical depression, the symptoms of which caused him to “freeze” in the face of Law Society requests. In investigating a client complaint against Mr. Burtt, the investigators failed to review the medical evidence in his file from past complaints, and thus failed to appreciate that his current failure to respond to their requests was the direct result of his disability. As a result, the investigators did not turn their minds to

any appropriate alternative approaches that may have achieved their investigatory objectives.

The panel found that the Law Society failed to establish that it had discharged its legal obligation to accommodate Mr. Burtt’s disability to the point of undue hardship, and so it dismissed the conduct application against him.

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Notable Reasons

Presumptive Revocation/ Duty to Accommodate Mental Disabilty Law Society of Ontario v. Khan, 2018 ONLSTH 131

Mr. Khan was found to have engaged in professional misconduct by failing to maintain the integrity of the profession. Among other things, he submitted several false or misleading billings to Legal Aid Ontario. Due to the dishonesty involved, the Law Society sought the presumptive penalty of revocation of licence, while Mr. Khan argued for a lesser penalty than revocation based on his undiagnosed ADHD and depression.

The panel found that, because Mr. Khan’s mental disability did not cause his misconduct, there was no legal duty to accommodate on the part of the Law Society or the Tribunal. Though there were mitigating circumstances, they did not amount to the exceptional circumstances that would be required to justify a penalty less than revocation.

Examples of Exceptional Circumstances Leading to A Lesser Penalty in Cases of Presumptive RevocationLaw Society of Upper Canada v. Adams, 2018 ONLSTH 20

Ms. Adams admitted to misappropriating over $300,000 in trust funds (which she later paid back in full), mishandling about $14,000 in trust funds, failing to maintain her books and records as required and misleading the Law Society in three of her annual reports.

Though the presumptive penalty for such misconduct was the revocation of her licence, Ms. Adams presented medical evidence, corroborated by three experts, that she had been experiencing a major depressive episode while the misconduct took place, precipitated by the recent loss of seven family members and exacerbated by a traumatic childhood. The panel found that she had established the exceptional circumstances necessary to justify a lesser penalty, and so she was granted permission to surrender her licence instead.

Law Society of Ontario v. Yantha, 2018 ONLSTH 94

Mr. Yantha was found to have knowingly overbilled Legal Aid Ontario nearly by $30,000, acting without disclosure or approval for legal aid certificate clients on his assigned duty counsel days or after having served them as duty counsel and failing to maintain contemporaneous dockets.

The panel decided that in this case, too, the respondent’s depression, as well as his concomitant substance abuse, constituted exceptional circumstances and mitigated the presumptive penalty of revocation. Mr. Yantha was therefore allowed to surrender his licence.

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Advertising

The past two years have seen an increase in cases brought before the Tribunal that are related to advertising by lawyers and paralegals. This is a result of initiatives within the Law Society of Ontario to address this rapidly evolving issue in the regulation of lawyers and paralegals. Advertising cases have been a particular focus of the Tribunal’s work in 2018 and have led to the development of new jurisprudence in this area.

The Rules of Professional Conduct and the Paralegal Rules of Conduct include provisions about the marketing of professional services, and the Tribunal interpreted and applied these rules in addressing a variety of advertising issues. Marketing alleged to suggest qualitative superiority to other lawyers or paralegals was found as professional misconduct. So were claims that lawyers or paralegals were "leading" or “aggressive”. In addition, professional misconduct was found as a result of claims that were impossible to verify, and so were considered confusing or misleading, as well as claims that would lead the public to believe that firms were larger (with the use of actor photos on the firm website) or had more experience (“decades of court experience” from a recently licensed paralegal) than was actually the case.

In some instances, truthful claims of past performance were not accompanied by the required disclaimer in the commentary to the relevant rules making clear that prior results are not necessarily indicative of future results. Another common issue that constituted professional misconduct was paralegals advertising services that fell outside the scope of a paralegal licence.

Of the nine advertising-related cases that came before the Tribunal in 2018, two are currently under appeal. Whatever the results of those appeals, jurisprudence in this area promises to continue to develop in 2019, further clarifying what is expected of lawyers and paralegals and providing more certainty for parties before the Tribunal.

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As one of the Law Society Tribunal’s core values, transparency has always been an important consideration in Tribunal operations. In 2018 we made several strides in our continuous endeavour to make clear to licensees, stakeholders, and the public what happens at the Law Society Tribunal and why it is important for both those inside and outside of the legal profession.

Transparency, as it relates to the Tribunal, is more than just an atmosphere of openness, or policies of publication; increasingly, in this digital age, transparency means online accessibility—not just ensuring that all public information is posted to our website, but making sure it’s easy to find, clearly written, and engagingly presented.

To this end, in April, the Tribunal hired a Communications Officer, whose mandate is to support communications with the public, the stakeholders, and the media, both online and off-line. By answering questions from the public, providing documents, communicating with media, demystifying processes, and articulating with simplicity and clarity the valuable

TransparencyOur commitment to a core value

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work the Tribunal does every day, the Communications Officer has already increased Tribunal transparency.

In particular, the Communications Officer has redesigned the weekly proceedings update newsletter that summarizes notices, orders, and reasons, and provides a brief of the following week’s schedule. Distributed mostly to members of the media and legal professionals, this newsletter is, for many, a way of keeping up-to-date on Tribunal decisions and our evolving jurisprudence. With a sleeker design, better-organized information, and more accessible language, the new weekly proceedings update has already grown in subscribers by 25% since its redesign.

Another mark of our commitment to disseminating important Tribunal information across multiple platforms is the creation of and regular communications through the Tribunal’s new Twitter account. The Tribunal Twitter account, @LawTribunal, sends out new adjudicator biographies, Tribunal news, and notable media articles about the Tribunal. The weekly proceedings update is also tweeted out to our 350+ followers every week.

The Tribunal also increased transparency in 2018 by redesigning our file review process, thus optimizing efficiency and accessibility for those who wish to review open or closed Tribunal files. Using file-sharing technology and with clear and easy-to-follow instructions posted to our website, anyone, anywhere in the world, can now request all public documents in a Tribunal file, including endorsements, orders, reasons, notices, at the click of a button.

In these ways, the Tribunal significantly improved transparency in 2018, and this trend promises to continue in 2019. Planning is already underway to start publicly posting all endorsements and to publish several plain-language guides on accessing Tribunal resources. Perhaps most significant, in 2019 the Tribunal intends to unveil a completely redesigned Tribunal website, which will include new useful features and improve navigability and mobile accessibility. These efforts to improve transparency, and thus to better pursue our mission, will yield increased and easier access to information about the Tribunal’s work for both the public and members of the legal professions.

To subscribe to the Tribunal’s weekly proceeding update email, please email ijohnson@lso.ca.

Transparency, as it relates to the Tribunal, is more than just an atmosphere of openness, or policies of publication; increasingly, in this digital age, transparency means online accessibility

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Conception

The Rules had not been rewritten since 2009. The need for change was identified in various reports, notably the Tribunal Model Three-Year Review Final Report in January 2016. In addition, the report of the Review Panel on Regulatory and Hearing Processes Affecting Indigenous Peoples recommended the consideration of various changes to the Tribunal rules, in particular flexibility in taking evidence.

The New RulesUpdating the Rules of Practice and Procedure

In November of 2018, The Tribunal Committee submitted to Convocation a draft of proposed new Tribunal Rules of Practice and Procedure. Researching, writing, and revising these rules has been a primary focus of Tribunal staff’s work this year.

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The New RulesUpdating the Rules of Practice and Procedure

The public consultation is an important step in making sure that the new Rules of Practice are fair, just, in the public interest, and well-adapted to the times.

Goals

The Tribunal Committee approached the redrafting of the rules with several specific goals, notably:

• to make the Rules more reflective of the Tribunal’s values of proportionality, accessibility, and fairness;

• to better accommodate vulnerable witnesses and those with mental health issues;

• to be more user friendly;

• to be clearer and more understandable, using plain language;

• to be more flexible;

• to be more uniform and less repetitive; and

• to allow for greater use of written processes, active adjudication and technology.

Process

Over the past 18 months, the revamping of the rules has been the main focus of the Tribunal Committee. In May of 2018, the Chair’s Practice Roundtable began consulting on the proposed changes as well, making suggestions and identifying potential issues.

When the final draft was submitted to Convocation in November, a public consultation began in which the request for comment was advertised on the Tribunal’s website, in the Ontario Reports, and via the Tribunal’s Twitter account, as well as in an article in the Lawyer’s Daily Magazine. The public consultation is an important step in making sure that the new Rules of Practice and Procedure are fair, just, in the public interest, and well-adapted to the times.

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Adjudicative excellence is a cornerstone of our tribunal model, and we are committed to the continuous improvement of our members’ adjudicative skills and knowledge. To this end, we provide rigorous and comprehensive training to both new and seasoned members, with all adjudicators attending two mandatory education sessions every year.

In addition to helping adjudicators build their skills and stay informed, these sessions are a chance for adjudicators to discuss current issues in adjudication amongst themselves, and for the Tribunal Chair and Counsel to update adjudicators on procedural developments at the Tribunal.

2018’s adjudicator education sessions focussed on the topics of memory and evidence.

Adjudicator Educationin 2018

Making Sense of Memory in Adjudicative Contexts

Steve Joordens, professor of psychology at the University of Toronto and winner of the 3M National Teaching Fellowship, the National Technology Innovation Award, and the Canadian Post-Secondary #EdTech Leader of the Year Award discussed memory as an active process that combines real data with assumed data.

In his presentation, he described the processes by which the brain makes sense of data and then applied these processes to memory-related issues that are relevant in adjudicative contexts. Adjudicators were taught to understand memory with a greater knowledge of the factors that give rise to memory errors and how these factors might be mitigated.

Evidence Law at the Law Society Tribunal

Presented by Lisa Dufraimont, Associate Professor and Associate Dean (Students) at Osgoode Hall Law School and Benjamin Berger, Professor at Osgoode Hall, this session canvassed key issues in the law of evidence as it relates to the administrative tribunal setting.

The first part of the presentation offered a review of fundamental ideas and principles in the law of evidence. The second part of the presentation dealt with more specific topics, such as dealing with hearsay, expert evidence, cross-examination and character evidence.

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Chair’s Speaking Engagements

Conflict and Incivility – De-escalation StrategiesSociety of Ontario Adjudicators and Regulators/Osgoode Professional Development Advanced Certificate in Adjudication

The View from the Adjudicators/Decision MakersThe Advocates’ Society, Administrative Tribunal Advocacy

Administrative Justice and Mental Health: Promises, Perils and Possibilities (Panel Chair)Canadian Institute for the Administration of Justice

Administrative Law Update and Those Tough Calls: Ethical Challenges for Tribunals2018 Council of Canadian Administrative Tribunals National Symposium

Technology and the Practice of Law and Recent Developments in Administrative Law (Panel Chair)Congrès annuel de l’Association des juristes d'expression française de l'Ontario

Mental Health: Access and Ethics (Panel Chair)The Action Group on Access to Justice, Access to Justice Week

Spotlight on Procedural Fairness – Self-Represented and Underrepresented LitigantsThe Canadian Institute 18th Annual Advanced Administrative Law & Practice

Ethics and Professionalism Canadian Bar Association Administrative Law, Labour and Employment Law Conference

The Law Society TribunalPresentation to the students of the Programme de pratique de droit

Active Adjudication Society of Ontario Adjudicators and Regulators/Osgoode Professional Development Certificate in Adjudication

Tribunal Chair David A. Wright is actively engaged in the legal community, organizing and speaking at a variety of events.This increases awareness of the Tribunal and the Law Society, contributes to the vibrancy of the administrative justice community and helps the Chair build his own skills.

This year’s speaking engagements included:

in 2018

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ContactAddressLaw Society Tribunal Suite 402375 University AvenueToronto, Ontario M5G 2J5

Telephone416-947-5249

Toll free1-800-668-7380, ext 5249

Fax416-947-5219

Emailtribunal@lso.ca