December 2, 2010

Applicant fitness to practice and past aberrant wrongful conduct

Administrative Law
Professional Regulation
Registration and Fitness

Professional regulatory bodies require applicants to be of good character or morally fit before admitting them into membership.   What constitutes a fit applicant for membership depends on the facts of each case.  Past wrongful conduct should be examined in light of whether the conduct was aberrant or explained by unique circumstances, the credibility of an applicant’s explanation for prior conduct, the level of insight into the prior conduct, its seriousness and impact, and the breadth or duration of the conduct. Where the impugned conduct is out of character for the applicant, it likely will not be a bar to admission so long as the evidence illustrates the applicant is possessed of integrity and honesty, understands the conduct was wrong, and would act within the ethical ambits of the profession.

For example, see Law Society of Upper Canada v. Shore, 2008 ONLSAP 6 (April 24, 2008), where the Law Society’s Appeal Panel discussed as part of addressing costs the Hearing Panel’s decision to grant admission to an applicant upon finding she was of “good character” as required by the Law Society’s governing statute. The Hearing Panel concluded, and the applicant herself admitted, that she had suppressed evidence in a criminal negligence case against 2 nurses in relation to the death of Shore’s 10-year old daughter. Though the non-disclosure was “clear evidence of wrongdoing” (para. 24 quoted at para. 66), the Hearing Panel found the misconduct was unique and “out of character” for the applicant, based on evidence from her colleagues and friends, her involvement and achievements at law school, her voluntary disclosure to Crown counsel, her expression of remorse, and the context within which the conduct took place. Accordingly, the Panel found the applicant was of “good character” and “a person possessed of the highest integrity, candour, empathy, and honesty.” (para. 48 quoted at para. 66).

Law Society of Upper Canada v. Shore, 2008 ONLSAP 6 (April 24, 2008)