By Rachel Nobel
Where a licensee does not outright refuse to cooperate with an investigation by their regulatory body, but nevertheless fails to provide the requested information or assistance, this may lead to regulatory action being taken against the licensee for failure to cooperate. The question of at what stage do these responses become a failure to cooperate that is enforceable at discipline was addressed by the Ontario Court of Appeal in Law Society of Ontario v. Diamond, 2021 ONCA 255.
In this case, the LSO sought certain documents that licensees are required to keep by law. Despite numerous communications, the licensee did not provide many of the documents requested. Accordingly, the LSO commenced an application alleging the licensee engaged in professional misconduct resulting from the breach of their duty to cooperate. The requested documents and information were not fully produced until approximately eight and a half months after the initial request was made. The hearing proceeded and a finding of professional misconduct was made.
In terms of the standard of review, the Court held that the test for assessing a failure to cooperate is a question of law, subject to correctness review, and one which the two tribunals below and the lower court understood. The issue as to whether the conduct of the licensee met that test was, however, one of mixed fact and law subject to palpable and overriding error scrutiny.
The Court summarized the test for assessing cooperation as follows:
(a) all of the circumstances must be taken into account in determining whether a licensee has acted responsibly and in good faith to respond promptly and completely to the Law Society’s inquiries; (b) good faith requires the licensee to be honest, open, and helpful to the Law Society; (c) good faith is more than an absence of bad faith; and (d) a licensee’s uninformed ignorance of their record-keeping obligations cannot constitute a “good faith explanation” of the basis for the delay.
The Court held that a licensee cannot rely upon an honest misunderstanding of their record keeping obligations or their duty to provide an honest, open, and helpful response as demonstrating good faith. Lawyers are expected to know these things. Further, the Court did not accept the licensee’s argument that the omission was insufficiently serious to constitute professional misconduct. The Court said that the “conduct constitutes a significant departure from the acceptable standards of the profession”.
The Court also rejected the suggestion that a “clear refusal” was required to establish a failure to cooperate. The Court held that any such approach would undermine the self-regulating nature of the profession.
Ultimately, the Court upheld the panel’s finding of professional misconduct.
Law Society of Ontario v. Diamond, 2021 ONCA 255