February 14, 2011

Fitness: Deemed findings of a lack of “good character”

Administrative Law
Professional Regulation

The precise meaning of a “good character” requirement for registration in a College will always be elusive, but the scope of such a concept may be simplified in a given case if certain conditions are established as definitive markers for when someone may lack “good character.” This process of “deeming” a lack of good character, or a failure to meet requirements, in a regulator’s bylaws, was recently highlighted by a recent decision of the Ontario Superior Court of Justice in Vincent v. Law Society of Upper Canada, 2011 ONSC 476, where an applicant for registration as a paralegal sought a stay of two decisions of the Law Society of Upper Canada dismissing his application, pending an appeal to the court. (The court dismissed his application, based on public interest concerns.)

Under Bylaw 4 (“Licensing”) of the Law Society of Upper Canada, an applicant for a licence “must be of good character” (s. 8(1)). The Bylaw also stipulates, however, “An applicant who makes any false or misleading representation or declaration on or in connection with an application for a licence, by commission or omission, is deemed thereafter not to meet, and not to have met, the requirements for the issuance of any licence under the Act.” (s. 8(2)) (emphasis added)

An applicant, V, applied for a paralegal licence, and filled out an application form requiring disclosure concerning such matters as previous criminal convictions, as well as findings involving fraud or dishonesty, dismissals from employment for cause, and the like. The currency, completeness and correctness of the information is declared by oath or solemn affirmation. The applicant provided a criminal record search that disclosed three criminal matters in 1969, and a criminal conviction in 2004. During the Law Society’s investigation of the events in 1969, V minimized the importance of the underlying events, characterizing it as a “small sexual incident” and a hearing panel found that V’s description during the application process was inaccurate and untruthful. In cross-examination, V admitted that he had deliberately misled the Law Society respecting the nature of the 1969 conviction.

The Hearing Panel found that s. 8(2) of Bylaw 4 was engaged by material and deliberate misrepresentations. Additionally, the Hearing Panel found that V had failed to establish his good character, applying that concept as previously addressed by the Law Society in Hyman Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 [at paragraphs 22-29]. Good character means “qualities which might reasonably be considered in the eyes of reasonable men and women to be relevant to the practice of law,” including “an appreciation of the difference between right and wrong, and the “moral fibre to do that which is right… and not to do that which is wrong….” Good character could be assessed by considering such factors as (a) the nature and duration of the misconduct, (b) whether the applicant is remorseful, (c) what rehabilitative efforts, if any, have been taken, and the success of such efforts, (d) the applicant’s conduct since the proven misconduct; and (e) the passage of time since the misconduct.

The Hearing Panel found that the misleading of the Law Society was of recent origin. Additionally, V was convicted for fraud in 2004, and the Hearing Panel’s examination of the events showed “at least an inability to recognize the obviously fraudulent nature of the transactions in which he involved himself” [89]. Additionally, V engaged in deception to effect service of a small claims proceeding in 2008, which on its own might not be sufficient to deny V a licence, but did illustrate a tendency to “engage in conduct which exhibits a lack of appreciation for the ethical standards demanded of a licensed paralegal.” [94]

The Appeal Panel affirmed the decision of the Hearing Panel, on the basis the ruling as to good character was reasonable, and s. 8(2) of Bylaw 4 was engaged by deliberate and material misrepresentations on or in connection with an application.

V appealed these findings and sought a stay of the decisions refusing his application, so that he could continue practising as a paralegal in the interim. Although the court accepted that V had a serious question to be decided, and that he would suffer “irreparable harm” if the decision to refuse his application were not stayed (meaning harm that could neither be quantified in monetary terms nor cured), the “balance of convenience” did not favour a stay. Public interest concerns arose from evidence that V had been engaging in unauthorized practice, and a misleading (over) statement that he made in an affidavit supporting the stay application. The Law Society also argued that the public would question the regulation of paralegals if a stay were granted when two panel decisions had found against the appellant and he conceded that he had made serious misrepresentations in his registration application. Accordingly, the court denied V a stay of the decisions.

Vincent v. Law Society of Upper Canada, 2011 ONSC 476, [2011] O.J. No. 397 (Ont.Sup.Ct.) (January 20, 2011)

ALSO: Law Society of Upper Canada v. Vincent, 2010 ONLSHP 51 (Hearing Panel, May 14, 2010)

ALSO: Law Society of Upper Canada v. Vincent, 2010 ONLSAP 26 (Appeal Panel, October 6, 2010)