Facts:
In 2019, AA applied to the Law Society of Ontario for a license to practise law. The Law Society had evidence that AA had sexually abused three children in 2009. Therefore, the Law Society carried out a good character investigation. In July 2023, the Law Society Tribunal ruled that AA is of good character. The Tribunal imposed one condition on AA’s license: that he not meet with minor children alone.
The Law Society appealed the Tribunal’s decision. The Law Society also sought a stay of the Tribunal’s decision pending the appeal. The Appeal Division granted the stay finding that public confidence in the regulation of the profession would be irreparably harmed if the Tribunal’s decision that AA is of good character was overturned but AA had been allowed to practise in the interim.
In March 2024, the Appeal Division dismissed the Law Society’s appeal and upheld the Tribunal’s decision that AA is of good character. The Law Society filed an application for judicial review of the Appeal Division’s decision. In the meantime, the Law Society applied for a stay of the Appeal Division’s decision pending the determination of the judicial review application.
Decision:
application for stay granted (per Davies J).
The Law Society met the three-stage test required for a stay to be granted: 1) there is a serious issue to be determined on its judicial review application (which AA conceded); 2) irreparable harm will occur if the stay is not granted; and 3) the balance of convenience favours the imposition of a stay.
The Law Society was not entitled to any costs because it failed to act expeditiously in seeking a stay of the Appeal Division’s decision. Likewise, the Law Society should have at least begun the paperwork to license AA. Neither filing an application for judicial review nor applying for a stay entitled the Law Society to ignore the Appeal Division’s decision. However, these delays did not disentitle the Law Society from a stay entirely.
There is a serious issue to be determined
The threshold for finding there is a serious issue to be determined is low. AA was correct to concede that the Law Society’s argument raises a serious issue to be determined at judicial review.
Irreparable harm will occur if the stay is not granted
The Law Society is required to protect the public interest when carrying out its functions. The good character requirement is a key component of this duty. It ensures each licensee will adhere to ethical standards. It also ensures the public can be confident in the integrity of the profession.
Without a stay, if its judicial review application is successful, the Law Society will have licensed someone who does not have good character. This is inconsistent with the Law Society’s obligation to protect the public interest. The public interest would be irreparably harmed if a stay is not granted.
The balance of convenience favours the imposition of a stay
A stay will likely have a financial impact on AA and his family. However, since the stay will only last a few months, the balance of convenience favours granting a stay.
Commentary:
This judgment is a welcome reminder that merely filing an application for judicial review does not entitle a party to ignore tribunal rulings. Thus, parties seeking judicial review are well served to seek a stay expeditiously and act as though the underlying decision is operative in the interim. If not, they could suffer cost consequences, as the Law Society did here.
But perhaps both the most interesting and unsatisfactory aspect of this decision is the analysis of irreparable harm. In her analysis of the balance of convenience, Davies J summarises her irreparable harm ruling as being that both the Law Society’s duty to regulate in the public interest and the public interest itself would be irreparably harmed (para. 20).
Both these harms pose questions. First, it is unclear how a duty can be harmed. A public body can fail to carry out a duty or be prevented from doing so. But how can a duty itself suffer harmed? There will be wide ranging consequences if courts conflate a public body being prevented from carrying out a duty with irreparable harm to that duty. This conflation would mean that a public body can demonstrate harm would be suffered without a stay by merely posing the argument that a judicial decision prevents the public body carrying out its duties.
This decision indicates that it regulatory bodies may face little difficulty in obtaining stays pending their judicial review applications. After all, they can virtually always claim harm to their public duty in being unable to fulfill their mandate if an unreasonable decision goes into effect.
Second, Davies J mentions two different public interests connected to the good character requirement without analysing the potential harm to each separately (para. 16). First, Davies J links the good character requirement to public confidence in the integrity of lawyers. Arguably, it is uncontroversial that public confidence in lawyers would be undermined if a practising lawyer was found to be of bad character in a judicial review. However, Davies J does not explain why this harm would be irreparable, particularly given that AA would only be practising for a few months. Perhaps the unstated answer is that when harm is done to reputation which, at least theoretically, can always be rebuilt, irreparable harm is too high a bar to apply.
Additionally, Davies J connects the good character requirement to ensuring that licensees adhere to high ethical standards. Clearly this protects the public interest by protecting the public from unethical lawyers. While the Law Society’s mandate includes protecting the public interest, the public itself is not a party in this dispute. This raises the question of whether the irreparable harm test can be met if harm would be suffered by other third parties, not simply the party bringing the application. Furthermore, even if AA is found to have bad character there is no guarantee that he would act unethically prior to having his license revoked. Is risk of irreparable harm sufficient to meet the test? Davies J does not address these questions. As a result, this decision leaves as much unanswered as it decides.