Cheating Not Proven, Good Character Established
The Ontario Law Society Tribunal Hearing Division found that an applicant possessed the good moral character for bar admission
The Law Society alleges that Ms. Butler is not of good character because she cheated in her November 2021 solicitor exam. At the hearing, and for the first time, the Law Society also alleged that Ms. Butler cheated on the June 2021 barrister exam. The Law Society further alleges that Ms. Butler engaged in misconduct in the aftermath of the November 2021 solicitor exam, including during the investigation into allegations of cheating.
In addition, the Law Society alleges that, during the Law Society’s investigation into Ms. Butler’s character, and contrary to s 8(2) of By-Law 4, Ms. Butler made one or more “false or misleading representation[s] or declaration[s] on or in connection with an application for a licence, by commission or omission” and that she is therefore deemed not to have met the requirements for the issuance of a licence to practise law.
e conclude that the Law Society has not proven, on a balance of probabilities, that Ms. Butler cheated on either the 2021 solicitor exam or the 2021 barrister exam. We also conclude that Ms. Butler did not make a misrepresentation within the meaning of s 8(2) of By-Law 4. We find that Ms. Butler could have been more forthcoming with the Law Society during its investigation into her character. However, the statements or omissions that the Law Society takes issue with do not rise to the level of a “misrepresentation” as contemplated by By-Law 4. They are either explained as misunderstandings or they are misstatements more appropriately dealt with under the “good character” rubric based on the factors outlined in Armstrong v Law Society of Upper Canada, 2009 ONLSHP 29.
There have been a number of issues with respect to widespread cheating on the licensing exam but
The Law Society has not established that Ms. Butler knowingly used prohibited material prior to or during the November 2021 solicitor exam. It has not provided compelling evidence beyond the Caveon Report which, on its own, is insufficient to establish that Ms. Butler cheated. Accordingly, we find on a balance of probabilities, based on all the evidence presented, including Ms. Butler’s testimony before us, that Ms. Butler did not cheat on the November 2021 solicitor exam.
False statement allegations
In this case, the Law Society is not alleging any misrepresentation in Ms. Butler’s licensing application form. Rather, it alleges that the misrepresentations occurred in the course of the Law Society’s investigation into whether cheating occurred.
By omission
Taking into account all the circumstances we have described, we do not consider the initial omission of the NEG tutoring service to be a deliberate misrepresentation. Nor do we consider this omission to bring Ms. Butler’s character into question such that it should be considered under the good character analysis.
When asked in her interview with the Law Society why she did not mention the Random Select WhatsApp group in her answer to investigators, Ms. Butler’s indicated that she was never asked, that the Random Select Group “was not something that was part of the tutoring service” and that “it had nothing to do with the service”. Her evidence at the hearing was that she considered the Random Select WhatsApp group to be unrelated to the allegations of cheating as the group was created after the exams were completed to figure out what was going on. Her understanding was that the investigator was requesting chat groups relevant to the issue of cheating and, in her view, the Random Select WhatsApp group fell outside of that scope.
We accept Ms. Butler’s explanation that she interpreted the question the way she did. While not endorsing this interpretation, it is not an unreasonable one. For this reason, we do not consider the omission of the Random Select WhatsApp group to be a misrepresentation under By-Law 4. We do not consider this omission to raise a question regarding Ms. Butler’s character.
Disparaging remarks about Law Society
In our view, Ms. Butler’s remarks about the Law Society do not give rise to a finding of misconduct that puts her character into question. The Law Society did not point us to any Tribunal decision that would support the conclusion that expressing one’s personal views about the Law Society on a semi-private online forum could give rise to an allegation of misconduct, even if those views are negative.
…In our view, Ms. Butler’s remarks about the Law Society do not call into question her moral or ethical strength nor any of the virtuous qualities encompassed therein such as integrity, candour, empathy and honesty. As Ms. Butler explained, and we accept, she was angry and frustrated when she made the remarks, in the context of a very stressful and uncertain time. She was forthright and appeared sincere in her apology to us for her comments.
We also have concerns with the suggestion that the Tribunal should limit expression in this way, especially given that the Random Select WhatsApp group was not a public forum – members of the group had to be specifically added by an administrator – and that the views Ms. Butler expressed were not directed at any particular individual within the Law Society and did not suggest an unwillingness to be governed by the Law Society; i.e. the comments were not an indication of ungovernability.
Analysis of factors
Weighing the factors, we conclude that Ms. Butler is currently of good character. Ms. Butler found herself in a very difficult situation with scant information. She acted in a way that appears to be out of character with her history of resilience and moral fortitude. Her character had not been at issue before, nor has it been since.
(Mike Frisch)