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Representation - Lawyers - License Conditions. 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.
Here the court considered adding conditions to a lawyer license when issued:iii. The licensing condition is inconsistent with a finding of good character
[126] While my conclusion above that the Tribunal’s good character decision was unreasonable would be sufficient to justify allowing the appeal, a significant portion of oral submissions dealt with the condition imposed by the Hearing Division [SS: "that he be supervised in any meeting with “minor children”"] after it found AA to be of good character. In my view, it is important for completeness to address this ground of appeal as well.
[127] AA argues that the reasonableness of the Hearing Division’s condition was not raised below. I would reject this submission. In my view, this is not a new issue. At the Appeal Division, the Law Society argued that the condition “is inherently inconsistent with a finding of good character”: Appeal Division Reasons, at para. 21. At the Divisional Court, it made essentially the same argument: Divisional Court Reasons, at paras. 21-22.
[128] The Tribunal has broad authority to attach conditions to the licensing of a lawyer. Section 49.26 of the Act provides, “[a]n order of the Hearing Division may include such terms and conditions as the Division considers appropriate.”
[129] It is well settled that terms and conditions cannot be imposed to “bootstrap” the applicant up to the level of good character: see e.g., Levenson, at para. 81; Nsamba v. Law Society of Upper Canada, 2020 ONLSTH 62, at para. 71. As the Appeal Division put it in this case, at para. 96:The panel must first make a finding of good character, under the usual tests, which the hearing panel applied to AA. Only then, and to achieve the specific goal of public confidence, conditions may be attached. [130] The Hearing Division stated its conclusion with respect to the condition attached to its finding that AA is of good character at para. 80:In the present case, we are persuaded that the applicant has established he is currently a person of good character and that his application for an L1 licence should be granted. We have also considered his offer of an undertaking not to meet in unsupervised settings with minor children and conclude that public confidence in the regulation of lawyers and paralegals would be enhanced by a term that requires that he not do so. [131] The Appeal Division, in rejecting the argument that the condition was inconsistent with a finding of good character, referred to two earlier precedents: Sheps v. Law Society of Upper Canada, 2016 ONLSTH 124, and Colangelo. In Sheps, the applicant suffered from a serious mental health condition. The Hearing Division made a good character finding and attached numerous restrictions to his licence, including ongoing therapy, practice monitoring, and that the applicant practice for two years as an employee and not a sole practitioner. In Colangelo, the Appeal Division found no inherent contradiction between a finding of good character and a restriction that effectively delayed the applicant’s practice of law until she completed her criminal sentence.
[132] Before this court, the Law Society has focused on the alleged unenforceability of the condition. The Law Society objects, as it did at the Appeal Division and Divisional Court, to the absence of any ongoing reporting or monitoring requirements as part of the condition.
[133] The Tribunal clearly has broad discretionary authority under s. 49.26 of the Act to attach a wide variety of conditions to the licence of an applicant it has deemed is of good character. Despite this broad statutory authority, it is obvious that the Tribunal cannot impose conditions that are unreasonable. This may occur where the condition fails to respect the constraints imposed by the text, context, and purpose of s. 27, which inform the parameters of reasonable conditions under s. 49.26. It may also occur where the condition introduces internal incoherence into the underlying good character decision: see Vavilov, at paras. 102-7. Indeed, there is no such thing as untrammeled discretion, and discretionary decisions must still be made reasonably: Vavilov, at para. 108; see also, Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147, at paras. 49-50, leave to appeal refused, [2025] S.C.C.A. No. 344.
[134] The question on this ground of appeal is whether the condition imposed was reasonable, and, in particular, whether it was consistent with a decision that AA was of good character. Here, the salient contextual constraint that the Tribunal failed to respect was the notion that public trust in the legal professions is dependent on the trustworthiness of individual lawyers. Put another way, the Tribunal failed to recognize that public trust is eroded by imposing a demographic condition that suggests that AA cannot be trusted with all of the responsibilities of licensure.
[135] Both the examples of Sheps and Colangelo are distinguishable because neither suggest that the applicant in those cases lacked trustworthiness with respect to a particular demographic group. The condition imposed on AA, however, does suggest so.
[136] Sheps, in my view, is particularly instructive, as conditions like those imposed in that case are entirely consistent with a finding of good character. Someone who lives with a mental health condition does not lack trustworthiness as a result. However, it is open to the Tribunal to conclude that person’s trustworthiness is linked to their ongoing commitment to appropriate treatment or that temporary restrictions on the type of professional context within which they may practice are appropriate. The diligence and vigilance reflected in such conditions is consistent with the public’s trust and confidence in the legal professions.
[137] While the Hearing Division asserted its view that public confidence in the regulation of lawyers and paralegals would be enhanced by the demographic condition it imposed on AA, the condition itself suggests that AA cannot be trusted to be alone with children. This is fundamentally at odds with the conclusion that AA presently meets the threshold of good character. Further, by concluding AA was of good character but could not be trusted to be alone with children, public trust and confidence in the legal professions was more likely to be eroded than enhanced. This introduces internal incoherence into the Tribunal’s decision and constitutes a fatal flaw in the “overarching logic” of its interpretation and application of s. 27: Vavilov, at paras. 101-4.
[138] The parties have not raised any case in which a demographic restriction was placed on an applicant’s licence after a finding of good character. This seems to be the first and only time such a demographic condition has been imposed as part of a good character disposition.
[139] That said, AA argues there is precedent for demographic conditions imposed by the Tribunal as part of disciplinary dispositions. He relies on a number of such cases, including: Law Society of Ontario v. Splinter, 2021 ONLSTH 58, Law Society of Ontario v. Schulz, 2021 ONLSTH 178, and Law Society of Ontario v. Lesieur, 2021 ONLSTH 144.
[140] These cases are distinguishable and do not assist AA. The disciplinary context is distinct from the licensing context, and in particular, the good character requirement as part of the criteria for licensure. Once a licensed lawyer engages in misconduct, the consideration of the Tribunal in determining an appropriate remedy in the face of that misconduct asks different questions than those which are relevant to a good character determination. The Tribunal is not concerned with the trustworthiness of an applicant, but rather how trust in the subject lawyer might be restored, and how the protection of the public in the face of the risk posed by the lawyer’s misconduct might be assured: Mackenzie, at § 26:1; see also, Splinter, at para. 30; Schulz, at paras. 69-70; Law Society of Ontario v. King, 2022 ONSLTH 30, at paras. 10-12; Law Society of Upper Canada v. Aron, 2011 ONLSHP 31, at para. 5.
[141] A demographic condition in the disciplinary context is remedial by its very nature. A panel imposing such a condition may be understood as doing so with a view to restoring a licensed lawyer to a position of trust. It is not assessing an applicant’s prospective trustworthiness for the first time.
[142] Finally, the Divisional Court held that the Appeal Division’s decision to uphold the condition was reasonable because it was proposed by AA himself. The Divisional Court explained its reasoning as follows, at para. 23:Indeed, upholding the condition in this case was reasonable because the condition arose in circumstances that promoted rather than undermined A.A.’s good character. This is because A.A. offered the Law Society and Tribunal an undertaking not to meet in an unsupervised setting with minor children. The Hearing Division accepted that offer and imposed it as a term on his licence. Given that A.A. proactively offered the undertaking as a good faith effort to provide further reassurance, it may have caused a loss of public confidence to decide not to add the condition to his licence. It therefore was reasonable for the Appeal Division to decline to intervene in the decision to impose the condition. [143] I approach the origin of the condition from a different perspective. In my view, the fact the condition arose as a proposal of AA, and not as a result of the Hearing Division’s own analysis, renders it less likely to enhance the public’s trust and confidence.
[144] While there is no doubt the undertaking was offered by AA as a good faith effort to reassure the Tribunal that he would not pose a risk, if AA himself does not believe he can be trusted to be alone with children, this raises the question of why the Hearing Division did not address this admission in its good character analysis. In my view, this is a failure of the Hearing Division to address a key submission of the parties, a hallmark of unreasonableness under Vavilov: at paras. 127-28.
[145] Further, if the Hearing Division took AA’s suggestion seriously enough to include it in its order, then it must reflect the Hearing Division’s recognition of an ongoing risk to children resulting from AA’s licensure. The absence of any monitoring or enforcement mechanisms attached to the condition raises troubling questions as to how the Hearing Division envisioned addressing this ongoing risk through such a condition.
[146] Given my conclusion that the condition was unreasonable, however, it is not necessary to address these additional questions here.
[147] In my view, the Hearing Division’s imposition of the condition on AA as part of its good character assessment was unreasonable, as was the Appeal Division’s decision to uphold this aspect of the Hearing Division’s decision. The condition cannot be justified in relation to the text, context, and purpose of s. 27, which inform the parameters of reasonable conditions under s. 49.26. It also introduces incoherence into the Tribunal’s underlying good character decision. The unreasonableness of the condition is a separate and distinct basis for allowing the appeal.
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