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Representation - Lawyers - Good Character (2). Law Society of Ontario v. AA
In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.
The court considers the law of LSO 'good character', and here conducts a statutory interpretation analysis of the term as it occurs in LSA s.27(2) ['Good character requirement']:[33] First, I note that the Hearing Division referred to the oft-invoked description of good character from Mary Southin, Q.C.’s (as she then was) article on the good character requirement in British Columbia:“[G]ood character” means those qualities which might reasonably be considered in the eyes of reasonable men and women to be relevant to the practice of law.
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Character…comprises in my opinion at least these qualities:
1. An appreciation of the difference between right and wrong;
2. The moral fibre to do that which is right, no matter how uncomfortable the doing may be and not to do that which is wrong no matter what the consequences may be to oneself;
3. A belief that the law at least in so far as it forbids things which are malum in se must be upheld and the courage to see it is upheld:
Mary F. Southin, Q.C., "What is ‘Good Character’" (1977), 35:2 Advocate 129, at p. 129. [34] I also note that the Hearing Division applied the test for good character from Armstrong, noting that the Tribunal itself views the factors articulated therein as the general analytical framework for assessing good character. It then set out those factors, which I reproduce again below for convenience:(a) the nature and duration of the past misconduct;
(b) the passage of time since the past misconduct;
(c) the applicant’s conduct since the past misconduct;
(d) what rehabilitative efforts, if any, have been taken, and the success of such efforts; and
(e) whether the applicant is remorseful. ....
i. The Hearing Division’s approach to the text
[52] As the text is the most important constraint on the Hearing Division’s interpretation of s. 27, it is necessary to consider the Hearing Division’s approach to the text to determine whether it was alive and responsive to the words the legislature actually used in setting out the requirements for licensure. The Hearing Division did not interpret and apply the phrase “good character” in isolation, but rather within the framework it had earlier elaborated in Armstrong. That is, it incorporated Armstrong’s interpretation of the meaning of the words “good character” by reference. It is thus necessary to consider whether this approach is sufficiently anchored in the text to be reasonable.
[53] As set out above, in this case, the Hearing Division referred to the description of good character from Mary Southin, Q.C. (as she then was). This description was also adopted by the Hearing Division in Armstrong: at para. 24. It includes the notion that good character means an appreciation of the difference between what is right and what is wrong, the “moral fibre” to do that which is right, and a belief that the law must be upheld, insofar as the law prohibits acts which are inherently wrong.
[54] In Armstrong, the Hearing Division rooted the various factors set out above in the broader role played by the public trust in the good character assessment. There, at para. 28, the Hearing Division adopted the following passage from its earlier decision in Preyra, Re, 2000 CanLII 14383 (Ont. L.S.T.H.), at p. 6:The onus is on the applicant to prove that he is of good character at the time of the hearing of the application. The standard of proof is the balance of probabilities. The relevant test is not whether there is too great a risk of future abuse by the applicant of the public trust, but whether the applicant has established his good character at the time of the hearing on a balance of probabilities. The test does not require perfection of (sic) certainty. The applicant need not provide a warranty or assurance that he will never again breach the public trust. The issue is his character today, not the risk of his re-offending. [55] In other words, while the applicant need not provide a warranty that they will never again breach the public trust, they must demonstrate, on a balance of probabilities, their good character at the time of the hearing.
[56] After citing this excerpt from Re Preyra, the Tribunal in Armstrong turned to the question of the factors relevant to a good character assessment, and set out the factors reproduced above.
[57] At para. 25 of its reasons, the Hearing Division in Armstrong also adopted practitioner Gavin MacKenzie’s statement of the objectives of the good character requirement, which he views as synonymous with those of discipline, namely to: “protect the public, to maintain high ethical standards, to maintain public confidence in the legal profession and its ability to regulate itself, and to deal fairly with persons whose livelihood and reputation are affected”: Gavin MacKenzie, Lawyers & Ethics: Professional Responsibility (Toronto: Carswell, 2004) (loose-leaf updated June 2025, release 2), at § 23:2.
[58] Overall, the Hearing Division in Armstrong defined good character, at para. 23 of its reasons, as:[T]hat combination of qualities or features distinguishing one person from another. Good character connotes moral or ethical strength, distinguishable as an amalgam of virtuous attributes or traits which undoubtedly include, among others, integrity, candour, empathy and honesty. [59] By incorporating the analysis in Armstrong by reference, this is evidently the interpretation of the text of s. 27 adopted by the Hearing Division in this case.
[60] The breadth of the plain meaning of s. 27 makes this a plausible reading of the text. However, this breadth also makes it necessary to examine the context and purpose of s. 27 in order to determine whether the Tribunal’s interpretation of the good character requirement in the circumstances of this case was reasonable.
b. Context
[61] The good character requirement under s. 27 of the Act does not exist in a legislative vacuum. A key context for the good character assessment is that of the self-regulation of the legal professions in the public interest, consistent with s. 4.2(3) of the Act. For the Tribunal’s decision that AA is of good character to be reasonable, its reasons must demonstrate that it was alive to and appropriately constrained by this broader context.
[62] A review of the case law on the regulation of the legal profession reveals that the concepts of public trust and public confidence are central to this public interest context. This is both in the sense of the requirement that lawyers be worthy of their clients’ trust, and in the sense that the Law Society itself maintain the public’s trust and confidence. Indeed, the Supreme Court of Canada has consistently offered a justification for lawyers’ self-regulation in the public interest that has foregrounded the need for law societies to safeguard relationships of trust between individual lawyers and clients, such that the public can maintain confidence in the legal profession in general.
[63] For the Tribunal’s decision to be reasonable, it must demonstrate that it was alive to this broader context.
i. The Supreme Court’s emphasis on public trust and confidence as fundamental to self-regulation in the public interest
[64] The Supreme Court underscored the centrality of trust in the regulation of the legal profession in Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500, at para. 17:The special rules governing the practice of the legal profession are justified by the importance of the acts that advocates engage in, the vulnerability of the litigants who entrust their rights to them, and the need to preserve the relationship of trust between advocates and their clients. [65] This relationship of trust flows directly from the fact that law societies have been granted by legislatures the authority to self-regulate in the public interest. As Wagner J. (as he then was) stated in Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, while considering the validity of rules enacted by the Law Society of Manitoba, law societies are given “broad discretion to regulate the legal profession on the basis of a number of policy considerations related to the public interest”: at para. 22. Thus, law societies must be afforded “considerable latitude in making rules based on [their] interpretation of the ‘public interest’ in the context of [their] enabling statute[s]”: Green, at para. 24; see also, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 36. Even where the legislation governing a law society lacks a public interest clause of the kind found in s. 4.2(3) of the Act, courts have held that the principle of self-regulation in the public interest nonetheless applies: see e.g., Song v. The Law Society of Alberta, 2025 ABKB 525, at paras. 88-89.
[66] The Supreme Court has also affirmed that the Law Society’s mandate to protect the “public interest”, as framed in s. 4.2(3), is a broad one that infuses all of its functions and includes safeguarding public confidence in the professions’ licensing process: Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at paras. 13-27 and 48.
[67] The majority in Trinity Western v. LSUC also treats the integrity of and societal trust in the professions as conceptually identical to the public confidence purpose underlying s. 4.2(3), indicating that these terms should be interpreted synonymously. For example, at para. 27, the majority says that the Law Society was entitled to conclude that Trinity Western University’s discriminatory admissions policy could “undermine public confidence in the [Law Society’s] ability to self-regulate in the public interest.” The majority makes the same point earlier, at para. 21, but uses the “societal trust enjoyed by the legal profession” and its integrity as stand-in values for public confidence.
[68] The Tribunal itself recognized this broader context in Armstrong, when it quoted from Gavin Mackenzie’s book, and in particular that the good character requirement is meant to “maintain public confidence in the legal profession and its ability to regulate itself”.
ii. Public trust and confidence are dependent on the trustworthiness of individual lawyers
[69] As is clear from the excerpt from Fortin above, the Supreme Court has also repeatedly stressed that the trustworthiness component of self-regulation stems from the fact that those who seek out legal services have important interests at stake and are in a position of vulnerability vis-à-vis their lawyers. For example, in A.G. Can. v. Law Society of B.C., 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at p. 335, Estey J. stated:[M]embers [of the legal profession] are officers of the provincially-organized courts; they are the object of public trust daily; the nature of the services they bring to the public makes the valuation of those services by the unskilled public difficult; the quality of service is the most sensitive area of service regulation and the quality of legal services is a matter difficult of judgment. [Emphasis added.] [70] Moreover, the court’s jurisprudence supports the claim that the public’s trust and confidence in the legal profession at large is an aggregation of individual clients’ trust in their particular lawyers. For example, in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, Rowe J., in the context of law society discipline proceedings, linked the trust members of the public place in their lawyers to “public confidence in the profession”: at para. 53. Citing the Court of Appeal of Alberta’s decision in Adams v. Law Society of Alberta, 2000 ABCA 240, 266 A.R. 157, Rowe J. stated that there is a “public dimension” to law society discipline proceedings which considers the effect of individual misconduct on the professions in general: at para. 88.
[71] In Adams, the court derived this “public dimension” from the “overarching trust that the profession and each member of the profession accepts” and which forms its “very foundation”: at paras. 6-10. This reasoning is not specific to the discipline context. Indeed, in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, Cory J. opined, in the defamation context, that a lawyer’s reputation for “professional integrity and trustworthiness” is both the “cornerstone of a lawyer’s professional life” and of “paramount importance to … other members of the profession”: at para. 118.
[72] The Law Society has itself acknowledged the primacy of public trust in the context of licensing individual applicants. In its submission on the Federation of Law Societies of Canada’s National Suitability to Practise Standard Consultation Report,[4] the Law Society stated, at p. 70:It is important to convey to the public and the profession that licencees are required to comply with standards of professional conduct. One of the ways of doing so is to licence those who, at the time of licensing, have demonstrated … respect for the rule of law and the administration of justice, honesty, governability and financial responsibility. Underlying these behaviours is the principle that the profession must be worthy of clients’ and the public’s trust. If an applicant’s past conduct has raised some question about his or her respect for the behaviours integral to the profession, it is valuable for law societies to make further inquiries and determine whether the applicant should be licenced. In this way, the Law Society’s commitment to maintaining standards of professional conduct is demonstrated. [Emphasis added.] iii. Conclusion on context
[73] The primacy of trust and confidence sheds contextual light on the constraints that governed the Tribunal’s decision that AA is of good character. It is also necessary to examine the purpose of s. 27 in order to understand the link between the trustworthiness of individual applicants and the public’s trust and confidence in the legal professions on the one hand, and the good character requirement on the other.
c. Purpose
[74] As noted above, one of the key purposes of the Act as a whole is defined in s. 4.2(3), which provides that, “in carrying out its functions, duties and powers under this Act, the Society shall have regard to” its “duty to protect the public interest.”
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[77] The Law Society submits that the objectives of the good character requirement, as interpreted by the Tribunal, are driven by the overriding public interest in protecting the public, maintaining high ethical standards, maintaining public confidence in the legal professions and their ability to self-regulate, and dealing fairly with applicants: see Gaya v. Law Society of Ontario, 2022 ONLSTH 53, at para. 8, citing Armstrong, at para. 25. See also, Mundulai v. Law Society of Ontario, 2024 ONSC 959 (Div. Ct.), at paras. 38-39, motion for extension of time to file a motion for leave to appeal denied, 2025 ONCA 68.
[78] I agree. In my view, good character cannot be reasonably understood or applied in isolation from the broader objectives of the Act, which take the questions of individual licensing applicants’ trustworthiness, and the public’s trust and confidence in the legal professions generally, as points of departure for the Law Society’s self-regulation in the public interest: see also, Law Society of Upper Canada v. Abbott, 2017 ONCA 525, 139 O.R. (3d) 290, at para. 78, leave to appeal refused, [2017] S.C.C.A. No. 355. The Tribunal was required to keep the purposes underlying s. 27 of the Act in mind when it decided AA is of good character.
d. The Hearing Division’s approach to context and purpose: the Armstrong framework on good character
[79] The Hearing Division’s approach to these key aspects of context and purpose was centred around its application of the Armstrong framework for assessing good character. Thus, it is important to consider the requirements of that framework as set out by the Tribunal in other good character cases as well. As Vavilov makes clear, a tribunal’s own jurisprudence interpreting a particular provision represents an important constraint on its decision making: at para. 131.
[80] In general, the Tribunal’s approach has been to view the good character requirement as rooted in the public trust vested in the Law Society. As the Hearing Division put it in Rad v. Law Society of Ontario, 2023 ONLSTH 67, at para. 56, aff’d 2023 ONLSTA 26:Lawyers and paralegals are the holders of a societal trust and the Law Society of Ontario is the gatekeeper of the legal professions in Ontario. In part, the Law Society fulfils this role through the good character requirement. [Citations omitted.] [81] Additionally, as the Tribunal explained in Yeager v. Law Society of Upper Canada, 2016 ONLSTH 42, at para. 5, the Armstrong framework is tied to public confidence in whether a person is able to be a lawyer despite prior misconduct:Under s. 27 of the Law Society Act, RSO 1990, c. L.8 and the Tribunal’s jurisprudence, a person who has engaged in previous misconduct must show that he or she is of good character. It is our job to take a hard look at what happened with the public’s interest in mind. We must look at what went wrong, whether the person feels remorse for it, what he or she has done since to address the issues, how they have behaved since and how long ago it was. At the end of the day a key question is whether the public can be confident that the person is able to be a paralegal or lawyer despite what happened before. Our caselaw recognizes that people make mistakes, but also overcome them to become an excellent and ethical professional …. [Emphasis added.] [82] While the Tribunal has consistently applied the factors from Armstrong, it also has consistently emphasized that they are not to be applied as a mere score card: Polanski v. Law Society of Upper Canada, 2020 ONLSTH 115, at para. 172, aff’d 2021 ONLSTA 26, appeal quashed, 2022 ONSC 1428 (Div. Ct.), leave to appeal to Ont. C.A. refused, M53298 (August 16, 2022); Birkett v. Law Society of Ontario, 2023 ONLSTA 14, at para. 55. As Gavin Mackenzie puts it: “[t]hese factors are not a code to be applied mechanically”: Mackenzie, at § 23:3.
[83] Rather, the Tribunal has been clear that these factors must be weighed holistically based on the facts of the case, in order to reach a conclusion on good character, and always bearing in mind the purposes of the good character requirement: Birkett, at para. 55; Law Society of Ontario v. Colangelo, 2023 ONLSTA 16, at paras. 24-25, aff’d 2024 ONSC 2446, 497 D.L.R. (4th) 676 (Div. Ct.), aff’d 2025 ONCA 341, 38 Admin. L.R. (7th) 4; Pachai v. Law Society of Ontario, 2021 ONLSTH 18, at para. 88; Yeager, at para. 5. Additionally, as the Tribunal’s decisions in cases such as Gaya and Mundulai show, it is particularly alive to this overarching public interest in its own interpretation of the good character requirement.
[84] To be clear, as emphasized by the Tribunal in the cases referred to above, this analytic framework is a holistic one. The concern for the public’s trust and confidence in the legal professions is embedded in the analysis of whether a particular person meets the good character threshold under s. 27 of the Act.
[85] Put differently, reasonably applied, the individual Armstrong factors cannot be seen as ends unto themselves.
[86] The question, therefore, is not simply whether a person has shown that they are remorseful, or that they have been successful in their rehabilitation, or that their conduct since the misconduct at issue has been exemplary, or that a significant amount of time has passed since the misconduct. These inquiries are undertaken for the purpose of determining whether the applicant seeking to be licensed is of good character. This purpose, in turn, requires the Tribunal to step back and engage in a broader assessment. That assessment will generally include the seriousness of the prior conduct, and the impact on the public’s trust and confidence in the legal professions, if any, of finding that an applicant is of good character notwithstanding that conduct and licensing them.
[87] In Rad, at paras. 59-60, the Hearing Division explained the link between the purposes of the good character requirement and the analysis of the Armstrong factors:The good character requirement at its core has four purposes. It shields members of the public from those who cannot be entrusted with the power to preserve and protect the rights and freedoms of others. It maintains high ethical professional standards. It enhances the respect for, and the legitimacy of the legal professions, which are vital to upholding the rule of law and the continuation of self-regulation. Finally, it provides a mechanism “to deal fairly with persons whose livelihood and reputation are affected”: Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29 at para. 25, Gaya at para. 8.
In furtherance of these purposes, the requirement of good character emphasizes the public’s expectations that lawyers and paralegals “have qualities such as honesty, integrity, empathy, candour, moral or ethical strength, knowing the difference between right and wrong, having the moral fibre to do what is right no matter the consequences, and following the law”: Nsamba v. Law Society of Ontario, 2020 ONLSTH 62 at para. 11, Armstrong at paras. 23-25. [88] The Hearing Division in Rad applied a two-step analytic approach to its good character assessment, noting that, “[i]n assessing whether the applicant has satisfied us that he is currently of good character, we considered these purposes and qualities, and the five factors as set out in Armstrong”: at para. 61 (emphasis added).
[89] In this sense, the Armstrong framework, as developed by the Tribunal, may be said to include two distinct analytic steps: first, an analysis of the various Armstrong factors, which may differ in significance and relevance in the context of particular cases; and second, an assessment of good character in light of those findings and the broader purposes of the good character analysis. Whether these two analytic steps are separated out by the Tribunal into a two-stage framework, or considered holistically together is of no moment, as discussed below.
[90] As the Hearing Division observed in John Blackburn v. Law Society of Upper Canada, 2010 ONLSHP 112, at paras. 52-53, the applicant’s misconduct leading to the good character hearing may be understood through the metaphor of the applicant, by virtue of the misconduct, having dug themselves into a hole. The deeper the hole, “the more difficult it is to climb out of”: Blackburn, at para. 52. The purpose of the good character hearing is to determine whether, at the time of the hearing, the applicant has successfully climbed out of that hole. That determination, in turn, requires an overall assessment, and not simply conclusions on each of the particular factors that may be relevant to the assessment.
[91] With this metaphor in mind, the relevance of the Armstrong factors is that they enable the Tribunal to determine if the applicant has climbed out of the hole they have dug for themselves at the time of the hearing. The seriousness of the prior misconduct assists the Tribunal in determining how deep that hole is. The relevance of public trust and confidence in the legal professions also may be understood as part of the assessment of how steep the climb will be for the applicant to reach licensure. The other Armstrong factors relating to remorse, rehabilitation, conduct since the misconduct, and the length of time since the misconduct, all enable the Tribunal to determine whether the applicant has in fact climbed out of the hole, and to explain that conclusion.
[92] While the Armstrong framework developed by the Tribunal may not be the only reasonable way to assess an applicant’s good character within the constraints of s. 27 of the Act, I see no basis on which to conclude this framework is unreasonable. It is responsive to the text, context and purpose of s. 27.
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