Appeal Rejects Bias Contention

The Ontario Law Society Tribunal Appeal Division rejected claims made on appeal from a hearing panel’s findings and order of revocation

The Law Society alleged that the appellant had knowingly assisted in dishonest conduct or alternatively accepted and disbursed funds in circumstances where he ought to have known that he was being used to facilitate dishonest conduct when he acted as an escrow agent in two transactions in 2012-13. In addition, the Law Society alleged that his trust account was overdrawn during 2013 contrary to By-Law 9.

The hearing panel found that the two transactions were dishonest. It found that the appellant ought to have known that the first transaction was dishonest and that he was being used to facilitate dishonest conduct. It found that the appellant knew the second transaction was dishonest when he participated as an escrow agent. Finally, the hearing panel found that overdrawing the trust account was misconduct.

On penalty, the hearing panel concluded that given the seriousness of the misconduct, which it characterized as involving a breach of trust, the presumptive penalty was revocation of licence. However, the hearing panel held that the evidence presented on penalty outlining the appellant’s value to the Black community and his longstanding commitment to improving the circumstances of people in his community amounted to mitigating factors that justified lessening the penalty from immediate revocation to permission to surrender his licence. Alternatively, assuming the presumption of revocation did not apply, an analysis of the Tribunal’s standard penalty factors would have led to the same result.

Claim of racial bias

The hearing panel agreed that systemic racial discrimination exists in Canadian society and in its institutions. However, it pointed out that his position would lead to a rebuttable presumption of impropriety in every motion for production of PAC materials where discrimination was argued. This would be inconsistent with the James test, which the appellant had accepted as applicable. In addition, the appellant cross-examined a number of Law Society employees involved in the investigation in aid of his motion yet was unable to provide any “tenable or particularized evidence of impropriety in the initiation of this application.”

We see no error in this reasoning. Again, the primary issue was whether the appellant could point to any evidence to suggest that race was a factor in the decision to initiate the proceedings. He could not. As the hearing panel put it: to get access to the PAC materials on this motion, “the Licensee must show more than that systemic racial discrimination exists.”

Conclusion

 In its lengthy reasons on the recusal decision, the hearing panel applied these principles in the context of an extensive examination of each example of alleged reasonable apprehension of bias set out by the appellant in his affidavit and in his materials. The panel concluded that “the interactions complained would not, individually or collectively, lead a reasonable observer to find a reasonable apprehension of bias, racial or other, on the part of the panel. When race was discussed it was done so respectfully and in context with the racism issue raised by Mr. Barnwell in the motion to quash.” We see no error in these recusal reasons.

Other claims on appeal