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Professionals - Notice of Hearing. Guiste v. Law Society of Ontario
In Guiste v. Law Society of Ontario (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against several professional misconduct findings where: "a panel of the Hearing Division of the Law Society Tribunal found that the allegations were proven.[1] The Hearing Panel imposed a three-month suspension, and ordered that Mr. Guiste pay costs of $225,000 to the Law Society.[2] Mr. Guiste’s appeal to the Appeal Division of the Tribunal was dismissed."
Here the court considers the appellant's argument that the LST Hearing Division made findings against him that were not alleged in the initiating Notice of Application:(iii) Authorities Relied on by the Appellant
[59] The appellant relies primarily on two authorities in support of his submissions. The first is Hryciuk v. Ontario (Lieutenant Governor) (1996), 1996 CanLII 4013 (ON CA), 31 O.R. (3d) 1 (C.A.), a case involving a inquiry into whether there should be a recommendation that a provincially-appointed judge be removed from office. The procedure at the time was that a public inquiry into a complaint could only be held if the Ontario Judicial Council recommended it after investigating the complaint, a screening process similar to that used in the Law Society disciplinary context.
[60] In Hryciuk, the Council had recommended that an inquiry be held into two complaints against the judge it had investigated, one relating to an allegation that he had kissed an Assistant Crown Attorney without her consent on a specific date in 1992, and another relating to an allegation that he had made remarks of a sexual nature to another Assistant Crown Attorney in 1988. During the inquiry, however, evidence was led about three other complaints relating to an alleged incident involving a judicial colleague and inappropriate conduct in relation to a court reporter in 1993. The Court of Appeal quashed the Inquiry Judge’s removal recommendation (at paras. 40-41):The Inquiry Judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge Hryciuk should be removed, but into whether he should be removed because of those complaints referred to her by the Judicial Council, namely the two complaints referred to in the Order-in-Council. By hearing three additional complaints not so referred, she exceeded her jurisdiction.
The discipline process under the Courts of Justice Act is mandatory. By requiring that there be two stages of review, the Legislature has balanced the public and judicial interests in a way which attempts to protect both and compromise neither. The fact that the subject of the process is a judge ought not, and does not, yield particular procedural advantages to that judge. But neither should his or her judicial office be a reason to deny procedural safeguards provided by law. [61] The second decision is Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 10566 (ON CA), 65 O.R. (3d) 146 (C.A.). In that case, the Complaints Committee of the College of Physicians and Surgeons of Ontario had referred an allegation of misconduct to the Discipline Committee for a hearing in accordance with its screening process. The allegation was that the physician had had a sexual relationship with a specific patient and had failed to maintain the standard of practice of the profession in relation to her. After the discipline hearing began, the College received another complaint from a different patient, which the Complaints Committee also referred to the Discipline Committee. However, instead of initiating new proceedings in relation to the second complaint, the College Registrar amended the Notice of Hearing for the proceedings that had already commenced by adding the new complaint. The Court of Appeal concluded that this was improper (at para. 29):I accept the submission of counsel for Dr. Henderson that what was involved in this case was joinder rather than the amendment of an existing Notice of Hearing. The complaints of Ms. S. and Ms. H., and the allegations of professional misconduct and incompetence derived from them, involved distinct and separate offences. The joinder of the allegations of Ms. H. with those of Ms. S. involved much more than the amendment of the original Notice of Hearing. (iv) Procedural Fairness
[62] I am not persuaded that the appellant was denied procedural fairness. It is well established that “a notice of hearing in a discipline case is not to be construed in the same way as a criminal indictment”: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), 285 O.A.C. 218, at para. 50.
[63] In Brooks v. Ontario (Racing Commission), 2016 ONSC 1136, 347 O.A.C. 200, at paras. 37-38 (aff’d 2017 ONCA 833, 33 Admin. L.R. (6th) 316, at para. 13), this court adopted the standard for the sufficiency of particulars in the administrative context set out in Violette v. New Brunswick Dental Society, 2004 NBCA 1, 267 N.B.R. (2d) 205, at para. 43, which requires an affirmative answer to the following three questions:1. Does the document provide sufficient particulars “to enable a member to identify, by implication, that which is not explicit”?
2. Does the document include enough facts “to enable the member to tie the allegation of wrongdoing to his or her conduct”?
3. Is there a sufficient connection between the alleged wrongdoing in the document and the eventual findings of the administrative tribunal? In my view, the Notice in this case meets that standard. There was no procedural unfairness.
[64] The allegations in the Notice of Application were general allegations that the appellant had failed to treat the tribunal with courtesy and respect and had failed to be courteous and civil with opposing counsel during the Street trial. The Notice stated that this alleged misconduct “included the following” and then listed specific examples of things the appellant had said. Nothing in the Notice or the way in which the proceedings before the Hearing Panel unfolded support the contention that the allegations were restricted to the specific examples listed in the Notice. It would have been apparent to the appellant that his conduct throughout the trial was in issue.
[65] Unlike in Hryciuk and Henderson, where there were new allegations based on entirely different events involving different complainants, the specific factual findings of the Hearing Panel which were not particularized in the Notice were simply part of the general misconduct the appellant was alleged to have engaged in. All of them were of the same nature, in relation to the same individuals (the trial judge and Crown counsel), occurred during the same proceeding and, in fact, on the same day as those particularized in the Notice of Application.
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