) ) WILLIAM JAMES WISE Appellant (Respondent) – v. –, 2010 ONSC 1937

CITATION : Wise v. LSUC, 2010 ONSC 1937 DIVISIONAL COURT FILE NO.: 502-09 DATE: 20100504 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FERRIER, SWINTON and SACHS JJ. BETWEEN: ) ) WILLIAM JAMES WISE Appellant (Respondent) – and – LAW SOCIETY OF UPPER CANADA Respondent (Applicant) )) )) )) )) )) ) L. Leslie Dizgun and Neil Perrier , for the Appellant William Holder , for the Respondent ) ) ) HEARD at Toronto: March 23, 2010 ENDORSEMENT FERRIER j. : [ 1 ] The appellant appeals from the decision of the Law Society Appeal Panel (“the Panel”) dated September 15, 2009. The Panel held that the appellant, a lawyer, had committed

an act of professional misconduct in refusing to attend an interview by a Society investigator. [ 2 ] The Society requires the licensees (lawyers and paralegals) it regulates, when under investigation and where deemed appropriate, to answer oral questions posed at in-person interviews.

The appellant challenges the authority of the Law Society to conduct such investigatory interviews. [ 3 ] The agreed evidence at the hearing before the Hearing Panel established that the Society notified the appellant regarding an investigation into his conduct on 23 June 2006 and that the Society gave the appellant a deadline of 31 December 2006 to cooperate with its investigation by attending an interview and producing documents. This appeal concerns only the attending for an interview.

By the time of the deadline, the appellant had not attended for an interview and refused to do so. [ 4 ] The appellant was, accordingly, found by a Hearing Panel to have committed professional misconduct by failing to cooperate with the Society’s investigation. The appellant’s licence was ordered to be suspended for one month, continuing indefinitely until he attends for an interview with a Society investigator. That decision was upheld by the Appeal Panel with detailed reasons. To date, the Appellant has refused to attend for an interview and his licence remains suspended.

[ 5 ] The appellant appeals to the Divisional Court on one ground only; the appellant contends that the Panel erred with respect to its finding that the Law Society Act , R.S.O. 1990, c.

L.8 (the “ Act ”) authorizes the Society to require that licensees provide information to it through oral interviews. [ 6 ] The Society investigation arose as a result of a complaint by the Senior Director (Compliance Division) of the Office of the Superintendent of Financial Institutions, alleging that the appellant had committed offences contrary to the Bank Act and that the appellant had participated in a fraudulent investment scheme. Issues A. What is the standard of review? B.

Did the Panel err in holding that the Society has the authority to require a licensee to provide information to it through an interview? A. Standard of Review [ 7 ] The Law Society Appeal Panel is entitled to deference with respect to its

interpretation of the Act , its home statute: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54 ; Law Society of Upper Canada v. Evans (2008), 2008 CanLII 34276 (ON SCDC) , 295 D.L.R. (4 th ) 281 (Ont. Div.Ct.) at 286, para. 13 . [ 8 ] Dunsmuir , supra , does not alter the effect of the numerous well-established standard of review decisions concerning the Law Society’s Appeal Panel. The Panel is entitled to deference on its findings of mixed fact and law and its

interpretation of the Act . This Court should only intervene if the Panel’s decision is unreasonable. Igbinosun v. Law Society of Upper Canada (2009), 2008 CanLII 36158 (ON SCDC) , 83 Admin. L.R. (4 th ) 106 (Ont. Div.Ct.), aff’d 2009 ONCA 484 (CanLII) , 96 O.R. (3d) 138 (C.A.), paras. 8-9 . [ 9 ] Accordingly, the standard of review is reasonableness. B. The Authority to Require an Interview [ 10 ] The Society relies on subsection 49.3(2) (

c) of the Act : Investigations Conduct 49.3

(1) The Society may conduct an investigation into a licensee’s conduct if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee. 2006, c. 21 , Sched. C, s.43. Powers

(2) If an employee of the Society holding an office prescribed by the by-laws for the purpose of this

section has a reasonable suspicion that a licensee being investigated under subsection (1) may have engaged in professional misconduct or conduct unbecoming a licensee, the person conducting the investigation may, (

a) enter the business premises of the licensee between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the licensee; (

b) require the production of and examine any documents that relate to the matters under investigation, including client files; and (

c) require the licensee and people who work with the licensee to provide information that relates to the matters under investigation. 2006, c.21 , Sched. C, s. 43 . (emphasis added) [ 11 ] Very briefly summarizing the appellant’s position, he submits that the subsection only requires the provision of information, not the attendance at an interview. Information can be given, for example, in writing, in response to written interrogatories.

[ 12 ] Furthermore, submits the appellant, unlike other regulatory statutes, the Act does not confer any express power to compel a person’s attendance for an interview. [ 13 ] The appellant submits that there are two standard drafting techniques found in regulatory statutes. Some, such as ss. 76(1) of the Health Professions Procedural Code (being

Schedule 2 of the Regulated Health Professions Act , 1991 , S.O. 1991 , c. 18 ) and ss. 33(2) of the Professional Engineers Act , R.S.O. 1990, c. P.28 give the regulatory investigator the powers of a Commission under the Public Inquiries Act , R.S.O. 1990, c. P.41 (“ PIA ”). The second drafting technique, found in ss. 11 to 18 of the Securities Act , R.S.O. 1990, c. S.5 among others, gives the investigator the powers of a civil court. [ 14 ] However, regulatory statutes do contain other ways of dealing with investigative powers. For example, the Employment Standards Act , 2000 , S.O. 2000, c.41 subsection 91(6) (

e) empowers an investigator to “question any person” on matters the investigator considers relevant. [ 15 ] Additional provisions of the Act are particularly relevant in interpreting subsection 49.3(2) (c). Function of the Society 4.1 It is a function of the Society to ensure that, (

a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide;… Principles to be applied by the Society 4.2 In carrying out its functions, duties and powers under this Act , the Society shall have regard to the following principles: 1. The Society has a duty to maintain and advance the cause of justice and the rule of law.… 3. The Society has a duty to protect the public interest . 4. The Society has a duty to act in a timely, open and efficient manner . 5.

Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21 , Sched. C, s. 7. (emphasis added) [ 16 ] The Court of Appeal has held, with respect to a professional self-regulating body, that “it would take clear words” from the legislature to deprive an investigator of the powers necessary to carry out an investigation: [In Pharmascience v.

Binet the Supreme Court] emphasized the onerous obligation placed on self-regulating bodies to protect the public. It follows that those given this obligation have the duty to inquire into the conduct of the members and “will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged:” at para. 37. In view of this principle, it would take clear words to deprive the investigator of powers necessary to carry out this important public interest. Gore v.

College of Physicians and Surgeons (2009), 2009 ONCA 546 (CanLII) , 96 O.R. (3d) 241 (Ont. C.A.) at para. 17 . [ 17 ] The Court of Appeal cautioned against interpreting narrowly the investigation powers of a professional self-regulating body, the effect of which may be to preclude it from employing the best means by which to “uncover the truth” and “protect the public”.

I can see no principled basis for distorting the ordinary meaning of “inquire into and examine the practice” to exclude the means of investigation that in some circumstances are most likely to uncover the truth and therefore best protect the public. [ 18 ] The Court of Appeal also stated, in obiter dicta , that when a legislature imposes upon members of a self-regulating body a duty to cooperate with investigations, then the powers of investigation granted to the body should be interpreted broadly: I note that the newly enacted subsection [s. 76(3.1) of the Health Professions Procedural Code ], which requires the member to cooperate fully with an investigator, is an enforcement power that supports a broad

interpretation of “inquire and examine”.

Gore , supra , at para. 20 . [ 19 ] It is well recognized that to ensure the effective discharge of the responsibilities of professional regulators, every professional has an obligation to co-operate with the self-governing body: Artinian v. College of Physicians and Surgeons of Ontario (1990), 1990 CanLII 6860 (ON SC) , 73 O.R. (2d) 704 (Div. Ct.) at 707; Law Society of Saskatchewan v. Stromberg (1995), 1995 CanLII 3909 (SK CA) , 122 D.L.R. (4 th ) 433 (Sask. C.A.) at 438; Adams v. Law Society of Alberta (2000), 2000 ABCA 240 (CanLII) , 82 Alta. L.R. 219 (Alta.

C.A.) at 221, para.7. [ 20 ] The duty to co-operate is such an important and clear obligation, that s. 49.8(1) of the Act provides that a licensee is required to provide information even if it is privileged or confidential. Privilege Disclosure despite privilege 49.8(1) A person who is required under

section 42, 49.2, 49.3 or 49.15 to provide information to produce documents shall comply with the requirement even if the information or documents are privileged or confidential. 1998, c. 21, s. 21; 2006, c. 21 , Sched. C, s.44(1). [ 21 ] The important and onerous duty of Law Societies and other professional colleges to protect the public interest is recognized by the Supreme Court of Canada: McCullock-Finney v. Barreau du Québec (2004), 2004 SCC 36 (CanLII) , 240 D.L.R. (4 th ) 410 (S.C.C.) at para. 45 ; Pharmascience v. Binet (2006), 2006 SCC 48 (CanLII) , 273 D.L.R. (4 th ) 193 (S.C.

C) at paras. 36 , 37. [ 22 ] Accordingly, self-regulating professions must have effective investigation powers to fulfill their obligations ( Pharmascience , supra , at paras. 36, 37 ). [ 23 ] In order to discharge its public duty, the Society needs flexibility in its approach to gathering information. To be restricted to written interrogatories would be to restrict the Society’s ability to “act in a timely, open and efficient manner” and cause it to fail in its duty to so act. [ 24 ] Some investigations are quite complex.

In such cases, to require the Law Society to conduct an investigation of a myriad of complex facts and transactions by written interrogatories would seriously impede the Society in fulfilling its public duty. Furthermore, it would play into the hands of a licensee who preferred not to co-operate with the regulator. [ 25 ] Finally, the Act expressly contemplates that oral information will be collected from licensees.

The Act provides that the Society must apply to the Superior Court for permission to disclose to public authorities oral (or written) statements made by licensees during investigations: (subsection 49.13(2)(

a) and (b)). The appellant’s position that he cannot be subjected to oral questions cannot be reconciled with this provision of the Act . [ 26 ] The plain meaning of the words in

section 49.3(2)(c), in their entire context, including their grammatical and ordinary sense and the purpose of the Act , does not permit a restrictive

interpretation of the words “provide information”. Conclusion [ 27 ] There is unquestionably an obligation on a licensee to provide information in an interview. The Panel correctly noted, however, that in requiring the licensee to attend for an interview, the Society must not act in an arbitrary or fundamentally unfair way [reasons para. 71]. In this case the Society gave the appellant ample opportunity to co-operate and clearly did not act arbitrarily or in an unfair manner. [ 28 ] The reasons for decision of the Panel are lengthy, detailed, thorough and well reasoned.

The decision of the Panel is reasonable within the parameters of Dunsmuir , supra . [ 29 ] Although not necessary to this Court’s decision, were the standard of review correctness, I would hold that for the foregoing reasons, the decision below is correct. [ 30 ] The appeal is dismissed. Costs payable to the Society fixed at $7,500 all inclusive. Ferrier J. Swinton J. Sachs J.

Released: May 4, 2010 CITATION : Wise v. LSUC, 2010 ONSC 1937 DIVISIONAL COURT FILE NO.: 502-09 DATE: 20100504 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FERRIER, SWINTON and SACHS JJ. BETWEEN: WILLIAM JAMES WISE – and – LAW SOCIETY OF UPPER CANADA ENDORSEMENT Ferrier J. Released: May 4, 2010