



COURT OF APPEAL FOR ONTARIO

CITATION: The Law
    Society of Upper Canada v. Abbott, 2017 ONCA 525

DATE: 20170623

DOCKET: C62169

Sharpe, Lauwers and
    Miller JJ.A.

BETWEEN

The Law Society of Upper
    Canada

Applicant (Appellant)

and

John Paul Abbott

Respondent
    (Respondent)

Sean Dewart and Tim Gleason, for the appellant

James Morton and Michelle Iezzi, for the respondent

Heard: December 22, 2016

On appeal from the decision of the Divisional Court (Justices
    Harriet E. Sachs, Julie A. Thorburn and Brian W. Abrams), dated February 10,
    2016, with reasons reported at 2016 ONSC 641, affirming the order of the Law
    Society Tribunal Appeal Division, dated September 14, 2015, with reasons
    reported at 2015 ONLSTA 25.

Lauwers J.A.:

[1]

The Appeal Division of the Law Society Tribunal found John Paul Abbott
    to have knowingly participated in multiple instances of mortgage fraud, but reversed
    the decision of the Hearing Division to revoke his licence to practise law. In
    my view this unprecedented result was not justified on the facts or on the law.
    I would allow the appeal from the decision of the Divisional Court dismissing the
    appeal from the Appeal Division, set aside the decision of the Appeal Division
    of the Law Society Tribunal on penalty and reinstate the penalty of licence
    revocation ordered by the Hearing Division.

A.

OVERVIEW

[2]

Mr. Abbott was called to the bar in 1989. When the suspect transactions
    took place in 2006-2007, he was a sole practitioner in real estate and acted on
    about 500 transactions annually.

[3]

In February 2007, a lender client advised Mr. Abbott that it suspected
    mortgage fraud in one of its transactions. The client complained to the Law
    Society on February 26, 2007, an investigation was authorized in March, and in
    April, the Law Society investigator required production of Mr. Abbotts
    clients files and client trust ledgers. Over the ensuing years other
    investigators asked for more information. Mr. Abbott was at all times helpful
    and responsive.

[4]

The investigation report was issued on November 6, 2012, more than five and
    a half years after the investigation was authorized. The disciplinary Notice of
    Application was issued on April 9, 2013, and the hearing took place before the
    Hearing Division over four days in August 2014.

[5]

The Hearing Division of the Law Society Tribunal found Mr. Abbott had engaged
    in professional misconduct by knowingly participating in or assisting in mortgage
    fraud in seven transactions over a four-month period in late 2006 and early
    2007; by failing to disclose material facts to his lender clients; and by
    failing to perform legal services to the standard of a competent lawyer. The
    financial losses were estimated to be about $625,000. The Hearing Division
    ordered that Mr. Abbotts licence to practise law be revoked, but gave him the
    opportunity to seek a stay pending appeal. The merits reasons are reported at
    2014 ONLSTH 194, and the penalty reasons are reported at 2015 ONLSTH 12.

[6]

The Hearing Division exhaustively reviewed the suspect transactions and
    the evidence, and summarized the elements of Mr. Abbotts misconduct at paras.
    194-97 of the merits decision, which set out the factual context:

In these transactions, and assuming that Mr. Abbott actually
    made the inquiries that he said he did, these inquiries were manifestly
    insufficient to address the risk of fraud. We conclude that having a concern
    about the risk of fraud and making an inquiry that does not genuinely address
    the concern is no different than having the concern and electing to make no
    inquiry at all. We conclude that Mr. Abbott knowingly assisted in these
    fraudulent transactions whether by failing to make inquiry or by making an
    inquiry that did not actually address the risk of fraud.

This conclusion is reinforced by Mr. Abbott's reaction to
    transactions in which third parties received payments. There were four of these
    transactions. Third party payments are said to be red flags in the Law Society
    Gazette and Law Society Magazine. The expert opinion states at pages 16 and 17
    that inquiries should be made about such payments. While Mr. Abbott did so, his
    inquiry was limited to determining whether the vendor authorized the third
    party payment. As Mr. Abbott's counsel properly conceded in argument, such an
    inquiry does nothing to address the risk of fraud. An inquiry that does not
    address the risk that it is intended to address is practically no inquiry at
    all.

We do not conclude that Mr. Abbott had actual knowledge of
    fraud. We do find that he was reckless and wilfully blind. We conclude, on a
    balance of probabilities, that Mr. Abbott knew of the risk that his conduct
    could bring about fraud by completing fraudulent transactions yet persisted in
    completing the transactions despite that risk. We conclude that Mr. Abbott became
    aware that an inquiry was required that would address the risk of fraud yet he
    made no useful inquiry. He made a different inquiry preferring to remain
    ignorant of what actually mattered.

Standing back and reviewing the pattern of the transactions as
    a whole, we conclude on the balance of probabilities that, by at least
    transaction #3 (which is one of the most problematic transactions), Mr. Abbott
    actually suspected deposit fraud yet chose not to make meaningful inquiries.
    With respect to the two cases of repair credits, we find that Mr. Abbott must
    have been suspicious had he reviewed the file as he said he did yet he made no
    inquiries. We find knowing assistance on the basis of recklessness and wilful
    blindness.

[7]

Mr. Abbott appealed under s. 49.32 of the
Law Society Act
,
    R.S.O. 1990, c. L.8. The Appeal Division unanimously agreed that Mr. Abbott had
    engaged in professional misconduct. Despite accepting the Hearing Divisions
    factual findings, on a three-to-two split, the majority of the Appeal Division
    modified the penalty by substituting a two-year suspension for the licence
    revocation ordered by the Hearing Division, largely in response to what it
    found to be the Law Societys inordinate and unacceptable delay in
    investigating and prosecuting Mr. Abbott. There was undoubtedly a lengthy
    delay, as the chronology of events set out in Appendix A shows. The
    Divisional Court dismissed the Law Societys appeal of the Appeal Divisions
    decision.

B.

The Issues

[8]

This appeal raises two general issues for determination:

1.

Did the Divisional Court err in dismissing the Law Societys appeal of
    the Appeal Divisions order?

2.

Did the Appeal Division err in allowing Mr. Abbotts appeal from the
    penalty of licence revocation imposed by the Hearing Division?

[9]

I will address these issues in reverse order.

C.

Did the Appeal Division err in allowing Mr. Abbotts appeal from the
    penalty of licence revocation imposed by the Hearing Division?

[10]

I begin by describing the governing principles, then turn to the Appeal
    Divisions decision, and conclude by discussing the application of the
    principles to the facts.

(1)

The Governing Principles

[11]

There are two sets of governing principles engaged in this issue. The
    first relates to the standard of review and the second to penalty.

(a)

The Standard of Review

[12]

The Appeal Division is required to defer to the penalty decisions of the
    Hearing Division, just as the court does with respect to the decisions of
    specialized professional disciplinary bodies:
Igbinosun v. Law Society of
    Upper Canada
(2008), 239 O.A.C. 178 (Div. Ct.), affd 2009 ONCA 484, 96
    O.R. (3d) 138, at para. 9;
Groia v. The Law Society of Upper Canada
,
    2016 ONCA 471, 131 O.R. (3d) 1, leave to appeal allowed, [2016] S.C.C.A. No.
    310 (February 2, 2017), at paras. 54-56.

[13]

There are three reasons for judicial deference. The first is that the
    Hearing Division is an expert tribunal. The second is that, unlike the Appeal
    Division, the Hearing Division hears live evidence over a period of time, in
    this case over four days, and has a decidedly more comprehensive understanding
    of the evidence. The third reason for deference is that the determination of
    the appropriate penalty for a lawyers misconduct is a question of mixed fact
    and law, which does not lend itself to the extrication of a pure question of
    law, as the Supreme Court noted in
Law Society of New Brunswick v. Ryan
,
    2003 SCC 20, [2003] 1 S.C.R. 247, at para. 41.

[14]

To paraphrase the jurisprudence, the reasonableness standard requires
    the Appeal Division to pay respectful attention to the Hearing Divisions
    reasons and to consider them as a whole, not as a series of discrete and
    unrelated elements each of which must pass the test of reasonableness. The
    Appeal Division must consider whether the Hearing Divisions outcome falls
    within the range of possible, acceptable and defensible outcomes that are open
    on the evidence. It is not the Appeal Divisions role to seek out what it
    considers to be the single best answer to the issue resolved by the Hearing
    Division. Nor should it seize on an error that does not affect the decision as
    a whole as the pretext for reaching a different result. See
Groia
;
Ryan
;
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190; and
Newfoundland
    and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board)
,
    2011 SCC 62, [2011] 3 S.C.R. 708.

[15]

In sum, the Appeal Division must find the penalty decision of the
    Hearing Division to be unreasonable before interfering with it.

(b)

Penalty

[16]

This appeal raises three issues regarding the appropriate penalty to be
    imposed on Mr. Abbott: the presumptive penalty of licence revocation, the
    existence of exceptional mitigating circumstances, and especially the effect of
    investigative and procedural delay on the penalty.

(i)

The presumptive penalty of licence revocation

[17]

The governing principles relating to the penalty to be imposed on a
    lawyer found to have knowingly participated in mortgage fraud were set out in
Law
    Society of Upper Canada v. Mucha
, 2008 ONLSAP 5, a decision of what was
    then called the Appeal Panel.
Mucha
is the converse of this case. After
    finding Mr. Mucha had knowingly participated in mortgage fraud in connection
    with sixteen real estate transactions, the Hearing Panel imposed a one-year
    suspension followed by a one-year practice restriction. The Appeal Panel
    allowed the Law Societys appeal and imposed the penalty of licence revocation.

[18]

The
Mucha
Appeal Panel noted, at para. 21: [W]e know of no
    case in which a penalty other than termination of practice has been granted
    once the Society has proven knowing participation in a mortgage fraud. The
    Panel recognized licence revocation as the presumptive penalty for this form of
    misconduct.

[19]

In
Mucha
,
the
    Appeal Panel instructed itself that the applicable standard of review was
    reasonableness and found, at para. 19, that the Hearing Panels disposition
    was unreasonable, on the basis, echoing
Ryan
, that: There is no line
    of reasoning that can reasonably support this result, and the disposition is
    outside of the range of reasonable dispositions available in the
    circumstances.

[20]

The
Mucha
Appeal Panel quoted Sir Thomas Bingham M.R. in
Bolton
    v. Law Society
, [1993] EWCA Civ 32, [1994] 2 All E.R. 486, who said, at
    para. 14:

Any solicitor who is shown to have discharged his professional
    duties with anything less than complete integrity, probity and trustworthiness
    must expect severe sanctions to be imposed upon him by the Solicitors
    Disciplinary Tribunal. Lapses from the required high standard may, of course,
    take different forms and be of varying degrees. The most serious involves proven
    dishonesty, whether or not leading to criminal proceedings and criminal
    penalties
.
In such
    cases the tribunal has almost invariably, no matter how strong the mitigation
    advanced for the solicitor, ordered that he be struck off the Roll of
    Solicitors
.
[Emphasis in
Mucha
.]

[21]

Licence revocation as the presumptive penalty for knowing participation
    in a mortgage fraud was considered and effectively adopted by the Divisional
    Court in
Bishop v. Law Society of Upper Canada
, 2014 ONSC 5057, 325
    O.A.C. 160 (Div. Ct.). In that case the member had participated in fourteen
    instances of mortgage fraud. The majority of the Hearing Panel imposed a
    penalty of revocation, which the Appeal Panel upheld, and the members appeal
    to the Divisional Court was dismissed. Justice Nordheimer stated, at para. 30:
    there is nothing
per se
objectionable to a profession setting out
    presumptive penalties for breaches of different types of professional
    obligations.

[22]

There is, as yet, no precedent for a lower penalty than licence
    revocation for a lawyer who has knowingly participated in mortgage fraud.

(ii)

Exceptional mitigating circumstances

[23]

The
Mucha
Appeal Panel stated, at para. 22: only exceptional
    circumstances of mitigation may justify a departure from the ordinary
    disposition of revocation of licence. The Panel took the position, at para.
    23, that presumptive revocation was compelled by the penalty factors,
    particularly the overriding public interest, so that only extraordinary or
    exceptional circumstances warrant a departure from that disposition.

[24]

The
Mucha
Appeal Panel expressly limited what it would consider
    to constitute such extraordinary or exceptional circumstances, at para. 28:

As noted earlier, we do not suggest that there can never be
    exceptional circumstances justifying departure from the ordinary disposition of
    revocation where the licensee has knowingly participated in mortgage fraud. By
    way of illustration only, there may be compelling psychiatric or psychological
    evidence that, among other things, credibly indicates not only that the
    misconduct was out of character and unlikely to recur,
but explains why it occurred
.
[Emphasis
    in
Mucha
.]

[25]

Arguably, in
Bishop
the Divisional Court allowed for mitigating
    factors beyond those personal factors that would explain the lawyers
    misconduct, at para. 31:

The other observation is that the mitigating factors that will
    amount to exceptional circumstances in any given case are not restricted to
    only certain types or forms. Medical reasons or financial desperation or
    situations of duress serve as examples of the type of mitigating factors that
    may amount to exceptional circumstances but those situations are not exhaustive
    of such factors. That said,
it remains the case that any
    such factors will normally have to be ones that would rise to the level where
    it would be obvious to other members of the profession, and to the public, that
    the underlying circumstances of the individual clearly obviated the need to
    provide reassurance to them of the integrity of the profession
. I would
    add, on that point, that factors that provide an explanation for the conduct of
    the lawyer will generally be ones that would most likely reach that requisite
    level of mitigation
but they are not the only ones that
    may achieve that result
. [Emphasis added.]

[26]

The majority of the Appeal Division in this case stated fairly, in para.
    41 of the decision, that
Bishop
widened the concept of exceptional circumstances
    beyond
Mucha
.

(iii)

The effect of investigative delay on penalty

[27]

The effect of investigative or procedural delay in administrative
    proceedings was addressed by the Supreme Court in
Blencoe v. British
    Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307. Mr.
    Blencoe resigned his position as a minister in the Government of British
    Columbia after accusations of sexual harassment. In the summer of 1995, two
    complaints of discriminatory conduct by sexual harassment against him were
    filed with the British Columbia Council of Human Rights, later known as the
    British Columbia Human Rights Commission. The incidents were alleged to have
    occurred between March 1993 and March 1995. The hearings were scheduled before
    the British Columbia Human Rights Tribunal in March 1998, over 30 months after
    the complaints were filed.

[28]

Mr. Blencoe suffered severe depression. He began judicial review
    proceedings in November 1997 to have the complaints stayed, arguing the
    Tribunal had lost jurisdiction because of the unreasonable delay in processing
    the complaints that caused serious prejudice to him and his family.

[29]

Speaking for the five-person majority in
Blencoe
,
Bastarache J. set out some
basic
    principles. While he agreed state-caused delay could give rise to an
    administrative law remedy, at para. 101, he cautioned that delay, without
    more, will not warrant a stay of proceedings as an abuse of process at common
    law, because it would not be appropriate to impose a judicially created
    limitation period. He added: In the administrative law context, there must be
    proof of significant prejudice which results from an unacceptable delay.

[30]

Blencoe
identified two grounds on which the prejudice arising
    from delay might affect administrative proceedings. The first, under the rubric
    of hearing fairness, relates to the impairment of: a party's ability to answer
    the complaint against him or her, because, for example, memories have faded,
    essential witnesses have died or are unavailable, or evidence has been lost,
    then administrative delay may be invoked to impugn the validity of the
    administrative proceedings and provide a remedy (at para. 102).

[31]

The second ground is that an unacceptable delay could amount to an abuse
    of process even where the fairness of the hearing has not been compromised
    (at para. 115). Justice Bastarache expressed considerable caution about this
    ground, at para. 115:

Where inordinate delay has directly caused significant
    psychological harm to a person, or attached a stigma to a person's reputation,
    such that the human rights system would be brought into disrepute, such
    prejudice may be sufficient to constitute an abuse of process. It must however
    be emphasized that
few lengthy delays will meet this
    threshold
. I caution that
in cases where there is
    no prejudice to hearing fairness, the delay must be clearly unacceptable and
    have directly caused a significant prejudice to amount to an abuse of process.
    It must be a delay that would, in the circumstances of the case, bring the
    human rights system into disrepute
. [Emphasis added.]

[32]

The meaning of abuse of process was discussed in para. 118 of
Blencoe
.
    The Supreme Court adverted with approval to the principles of the criminal
    doctrine, which permit a stay where: compelling an accused to stand trial
    would violate those fundamental principles of justice which underlie the
    community's sense of fair play and decency", or where the proceedings are
    "oppressive or vexatious". Justice Bastarache added, at para. 120:

"[A]buse of process" has been characterized in the
    jurisprudence as a process tainted to such a degree that it amounts to one of
the clearest of cases
. In my opinion, this would apply
    equally to abuse of process in administrative proceedings.
For there to be abuse of process, the proceedings must be
    "unfair to the point that they are contrary to the interests of
    justice"
. "Cases of this nature will be
extremely
    rare
" In the administrative context, there may be abuse of process
    where conduct is equally oppressive. [Emphasis added.]

[33]

Further, for there to be an abuse of process, there must be a causal
    connection between the delay and the prejudice: the delay must have caused
    actual prejudice of such magnitude that the public's sense of decency and
    fairness is affected (at para. 133).

[34]

The court is required to balance the competing interests in assessing
    whether a delay amounts to an abuse of process, as noted at para. 120:

In order to find an abuse of process, the court must be
    satisfied that, "the damage to the public interest in the fairness of the
    administrative process should the proceeding go ahead would exceed the harm to
    the public interest in the enforcement of the legislation if the proceedings
    were halted.

[35]

Bastarache J. recognized, at para. 117: There is, however, no support
    for the notion that a stay is the only remedy available in administrative law
    proceedings. However, he found that the personal prejudice to Mr. Blencoe
    coupled with the delay of 24 months did not amount to an abuse of process and
    that accordingly no remedy was warranted.

[36]

Justice LeBel, speaking for the minority of four judges, agreed with the
    majority that a stay was not warranted but would have found an abuse of process
    and granted a modest remedy for the delay, namely an order expediting
    proceedings and awarding costs to Mr. Blencoe.

(c)

A Summary of the Governing Principles

[37]

To summarize, the relevant governing principles are the following:

·

the
    Appeal Division must find the penalty imposed by the Hearing Division on a
    lawyer to be unreasonable before it may substitute its own penalty;

·

in
    determining the penalty for knowing participation in mortgage fraud, priority
    is to be given to the public interest in maintaining the integrity of the
    profession;

·

the
    presumptive penalty is licence revocation;

·

that
    penalty can be withheld only in extraordinary or exceptional circumstances;

·

such
    circumstances will usually be personal to the member, and explain why the
    misconduct occurred and why there is no fear of repetition; and

·

where
    delay is claimed to constitute such an extraordinary circumstance, the effect
    of delay must be examined via the two branches of
Blencoe
:

·

first, hearing fairness - whether the delay impairs the defences
    ability to make full answer and defence given the quality of the evidence; and

·

second, whether the delay gives rise to an abuse of process.

(2)

Appeal Division: The Majority Decision

[38]

The Appeal Division was divided in its reasoning and in the result. The
    Chair, Raj Anand, wrote the majoritys reasons, and was joined by Roger
    Yachetti and Constance Backhouse. They set aside the penalty of licence
    revocation imposed by the Hearing Division on Mr. Abbot and substituted a two-year
    suspension. The dissent was written by Christopher Bredt, who was joined by lay
    bencher Marion Boyd. They would have dismissed Mr. Abbotts appeal and upheld
    the revocation of his licence to practise law.

(a)

The Standard of Review

[39]

The majority found that on questions of fact, credibility, and mixed
    fact and law, the standard of review is reasonableness, but with respect to
    questions of law, the standard of review is correctness (at para. 7).

(b)

Penalty

[40]

The majority upheld the Hearing Divisions findings on Mr. Abbotts
    professional misconduct without reservation (at para. 11). The majority made
    several pertinent observations. First, and significantly, it pointed out that Mr.
    Abbott did not argue that the fairness of the hearing below was compromised by
    the passage of time, thus setting aside the first branch of
Blencoe
. Second,
    the majority specifically upheld as reasonable the Hearing Panels finding
    that, on the second branch of
Blencoe
: Mr. Abbott had not
    demonstrated significant psychological harm or stigma to his reputation, caused
    by the length of the investigation. They continued, at para. 15:

The panel's ruling about the impact on the Lawyer and his
    reputation was largely factual. Based on the Lawyer's affidavit, and the report
    filed by his social worker, together with the examinations of both witnesses,
    the Hearing Division at paras. 32 to 63 carefully analyzed the Appellant's
    claim that he had suffered psychological and economic prejudice due to the
    delay. The panel acknowledged at para. 60 that "the length of the
    investigation was stressful and difficult for Mr. Abbott." Its factual
    finding that no significant prejudice was proven is reasonable. In this
    context, its finding of mixed fact and law, characterizing the damage to the
    public interest should the hearing proceed as falling short of the harm to the
    public interest in professional regulation if the proceeding were halted, was
    also reasonable and should not be disturbed on appeal.

[41]

Third, the majority upheld the Hearing Divisions refusal to dismiss Mr.
    Abbots application for a stay on account of delay, concluding that its refusal
    was reasonable (at para. 16).

(i)

The presumptive penalty of licence revocation

[42]

The majority accepted that the presumptive penalty in the case is the
    revocation of Mr. Abbotts licence to practise law (at para. 31). It rejected
    Mr. Abbotts request to revisit whether licence revocation should be the
    presumptive penalty.

(ii)

Exceptional mitigating circumstances

[43]

The majority accepted, at paras. 41-42, that the Divisional Courts
    decision in
Bishop
widened the concept of exceptional circumstances,
    but only in situations where the underlying circumstances of the individual case
    provided assurance to the public that the integrity of the profession will be
    maintained.

[44]

Mr. Abbott advanced twelve mitigating circumstances. The Hearing Division
    rejected them as individually and cumulatively insufficient to mitigate the
    presumptive penalty of licence revocation even though it did not question the
    truth of many of them. The majority noted, at para.46:

While this panel may not have reached precisely the same
    conclusions with respect to each of the listed mitigation items, that is not the
    test on appeal. Most of the Hearing Division's conclusions addressed questions
    of fact or mixed fact and law, and were reasonable.

[45]

The majority of the Appeal Division went on to decide that the
    investigative and procedural delay was capable of constituting an exceptional
    circumstance that could mitigate the presumptive penalty of licence revocation.

(iii)

The effect of investigative delay on penalty

[46]

Despite its earlier conclusion that the Hearing Divisions rejection of
    most of the mitigating circumstances was reasonable, the majority said at
    para. 54: we are unfortunately unable to say whether the full range of
    mitigating circumstances was given proper effect. The majority focussed on
    what it considered to be the Law Societys inordinate investigative and procedural
    delay, expressed at para. 47:

Our focus, however, is on the panel's consideration of the
    overriding issue of delay, and the impact of its reasoning on the ultimate
    conclusion that Mr. Abbott's mitigating circumstances fell short of exceptional
    circumstances that would relieve against revocation.

[47]

The majority found, at para. 17, that the delay in this case was indeed
    inordinate, and added, at para. 29, that the delay up to and somewhat beyond
    the issuance of the Notice of Application was inordinate and unacceptable, and
    exceeded what the community would regard as fair in the context of this case.

(iv)

The Appeal Divisions Penalty

[48]

The majority took the position that the Hearing Division had made
    several errors of law in assessing the effect of the Law Societys
    investigative and procedural delay on Mr. Abbotts penalty. I discuss these alleged
    errors of law in more detail below. In view of these errors, the majority
    decided, at para. 56: the Appeal Division is entitled to reach its own
    conclusion after directing itself to the proper factors and weighing them.

[49]

The majority substituted a two-year suspension for the licence
    revocation imposed by the Hearing Division on Mr. Abbott, stating
, at para. 90, that the mitigating circumstances,
    coupled with the delay, 
constituted exceptional circumstances that
    merited the mitigation of the presumptive penalty of revocation of the Lawyer's
    licence. It picked out in particular, at para. 84, several mitigating
    circumstances that spoke in his favour, which it took from para. 22 of the
    Hearing Divisions penalty decision. I will review these below. Accordingly,
    the majority found, at para. 103, that, contrary to the Hearing Divisions
    conclusion: this is a sufficiently extreme and rare case that it justifies the
    substitution of a suspension in place of the presumptive penalty. This
    followed the majoritys conclusion, at para. 101, again contrary to the
    findings of the Hearing Division, that: Overall, the circumstances do not
    point to a likelihood of a reoccurrence of professional misconduct. The core
    of the majoritys penalty reasoning is found in para. 104:

Considering all of the mitigating factors together, and after
    anxious and careful review, we have determined that the Lawyer has demonstrated
    "exceptional circumstances" that, in the formulation adopted in
Mucha
,
    are "more exceptional" than those that would justify an order to
    surrender his licence. A suspension will, for the reasons we have put forward,
    satisfy the onerous standard set by the Divisional Court in
Bishop
:
    the underlying facts concerning Mr. Abbott, in tandem with the institutional,
    stakeholder and personal interests concerning excessive delay, require the
    imposition of a remedy that will provide reassurance to the public of the
    integrity of the profession and its processes.

[50]

The majority added, at para. 105:

At the same time, the imperatives of specific deterrence, general
    deterrence, and the maintenance of public confidence in the integrity and the
    regulation of the profession obviously point to the need for a lengthy
    suspension, in recognition of the nature and seriousness of the misconduct that
    occurred in this case, and the objectives that a long line of this Tribunal's
    case law has attempted to vindicate in cases of fraud and misappropriation.

(3)

The Principles Applied

[51]

In this section of the reasons I begin with the standard of review and
    then address the errors the majority made in its decision.

(a)

The Standard of Review

[52]

As I have noted, the Hearing Division imposed the penalty of revocation
    of Mr. Abbotts licence to practise law in view of his knowing participation in
    mortgage fraud. There are no decisions supporting a lesser penalty. On the face
    of things, the Hearing Divisions imposition of the presumptive penalty fell
    within the range of possible, acceptable and defensible outcomes that were open
    on the evidence. In order to justify its rejection of that outcome, the Appeal
    Division was required to identify an overriding error of principle made by the
    Hearing Division that renders its penalty decision unreasonable, in the sense
    given metaphorically by Stratas J.A. in
South Yukon Forest Corporation v.
    Canada
, 2012 FCA 165, 431 N.R. 286, leave to appeal refd, [2012] S.C.C.A.
    No. 349, at para. 46:

"Overriding" means an error that goes to the very
    core of the outcome of the case. [I]t is not enough to pull at leaves and
    branches and leave the tree standing. The entire tree must fall.

[53]

The majority did not identify any such error of principle.

[54]

In my view, the majority failed to: defer to the Hearing Divisions
    penalty decision, as it was obliged to do; pay respectful attention to the
    Hearing Divisions penalty reasons and consider them as a whole; and consider
    whether the Hearing Divisions penalty fell within the range of possible,
    acceptable and defensible outcomes that were open on the evidence.

(b)

The Majoritys Errors

[55]

The majoritys reasons identify several issues on which it disagreed
    with the Hearing Division, to which I now turn.

(i)

Does the Law Society Tribunal have a role in policing prosecutions?

[56]

This is the core of the difference between the majority and the Hearing
    Division. The majority of the Appeal Division considered it to be part of the
    Law Society Tribunals function to curb inordinate delay (at para. 78).
    Accordingly, the majority noted, at para. 84:

[H]arm to the administration of self-regulation, concern about
    repetition of delays, values of fairness, and efficient and effective service
    to the public and indeed to complainants are all prejudicial to the public
    interest more widely conceived. Delay in investigation and prosecution may be
    as harmful to public confidence in the legal professions ability to regulate
    itself as Mr. Abbotts continued right to practise law.

[57]

The dissent rejected the majoritys approach, noting at para. 139:

The majority's rationale for reducing the penalty from
    revocation to a suspension in this case, is that it is necessary in the public
    interest to send a message to the Law Society that this type of delay is
    unacceptable. In our view, this rationale is not consistent with the need to
    assure the public of the integrity of the profession.

[58]

Under the
Law Society Act
, questions of policy and resource
    allocation belong to Convocation, not to the Law Society Tribunal of which the
    Hearing and the Appeal Divisions form parts. Both Divisions are adjudicative
    bodies in the disciplinary scheme, with only limited policing functions.

[59]

The majority criticized the Hearing Division for failing to make
    findings of the significance of the delay for the intersecting public and
    private interests that were relevant to its penalty determination (at para.
    88). The majority added that if the Hearing Division had accorded significant
    weight to the extraordinary delay that took place here  we do not believe the
    panel's conclusion on delay as a mitigating factor and the overall
    circumstances as exceptional would have been the same (at para. 89).

[60]

With respect, the majority did not read the Hearing Divisions reasons
    fairly. The Hearing Division was fully alive to the actual delay and knew the
    reasons for it, as it explained in the merits decision at paras. 17-20:

The Investigation Report in this matter is dated November 6,
    2012. The Notice of Application was issued on April 9, 2013. There was a period
    of slightly over six years between the commencement of the investigation and
    the commencement of this Application. This hearing proceeded over seven years after
    the commencement of the investigation. As Mr. Dewart said in apparent
    understatement, this is not ideal.

The explanation for this delay has little if anything to do
    with this particular case. Rather, mortgage fraud investigations are among the
    most complex and time-consuming investigations and are extremely demanding upon
    resources.

The Law Society has faced a growing inventory of mortgage fraud
    complaints with the volume of investigations becoming much greater by 2005.
    Because of this volume, the Law Society triaged investigations based on
    perceived urgency/risk in order to best apply available resources.

A situation such as this raises difficult issues of resource
    allocation. Some may think that the Law Society should have diverted sufficient
    resources from other regulatory activities to address the volume of mortgage
    fraud investigations. Others may think that Law Society fees should have been
    raised to generate further resources. Irrespective of the right answer, if
    there is one, to this resource problem, there was a lengthy delay in this case.

[61]

It is serious business for an adjudicative body to disturb, on grounds
    of investigative and prosecutorial delay, what would otherwise be the ordinary
    operation of the disciplinary scheme. This is because two public interests are
    in tension, as the Supreme Court noted in
Blencoe
at para. 120: the
    public interest in the fairness of the administrative process should the
    proceeding go ahead, on the one hand, and, on the other hand, the harm to the
    public interest in the enforcement of the legislation if the proceedings were
    halted. In my view, the role of the Law Society Tribunal in policing the
    prosecutorial function with respect to delay is defined by and limited to the
    authority of
Blencoe
.

[62]

The Hearing Division adverted precisely to the balance between two aspects
    of the public interest in para. 63 of the merits decision in determining that
    the prosecution would not be stayed:

However, assuming inordinate delay which we need not decide, we
    find that the damage to the public interest in the fairness of this
    administrative process should this hearing proceed does not exceed the harm to
    the public interest in the professional regulation pursuant to the
Law
    Society Act
if this proceeding were halted. To the contrary, the public
    interest demands in the context before us that there be a determination of
    whether Mr. Abbott has engaged in professional misconduct in the serious
    circumstances alleged despite the fact of lengthy delay and the prejudice
    resulting from that delay.

[63]

The Hearing Division carefully assessed the tension between the public
    interest in fairness and in enforcement, and its assessment was entirely
    reasonable. The Appeal Division erred in setting that assessment aside.

[64]

The majority also faulted the Hearing Division for giving priority to
    general deterrence over specific deterrence in setting the penalty, noting at
    para. 83: the Hearing Division gave precedence to general deterrence and
    maintenance of public confidence in the legal profession as the penalty
    objectives in this case, and minimized the importance of specific deterrence.
    The majority found this to be wrong, and required both objectives to be
    accommodated. The majority added, at para. 84: we do not agree that reducing
    a penalty because of prejudice is most relevant where specific deterrence is
    the principal penalty goal.

[65]

The Hearing Division recognized the need to take into account both
    specific and general deterrence and addressed the issue directly at paras. 30 and
    32 of its reasons on penalty:

We accept the submission that delay causing prejudice can be a
    mitigating factor in many cases. However, we do not accept that prejudice
    arising from delay in this case is a proper basis to turn revocation into a
    lengthy suspension.



The second reason is that the principal basis for the
    presumptive revocation penalty is general deterrence and maintenance of public
    confidence in the legal profession. On the other hand, reducing a penalty
    because of prejudice arising from delay is most relevant where specific
    deterrence is the principal penalty goal. Where a panel is concerned about the
    prospect of a lawyer engaging again in professional misconduct, a panel can
    reasonably conclude that the lawyer will reflect on all of the impacts of the
    prior misconduct and want to avoid all such impact. To the extent that a
    penalty in a discipline proceeding can properly be seen as punishment, it is
    fair to reflect prejudice suffered from investigative delay in the penalty
    ultimately ordered. While there might be cases where prejudice was sufficiently
    significant that general deterrence and maintenance of public confidence would
    be sufficiently served by a lengthy suspension rather than revocation, this is
    far from being such a case.

[66]

The Hearing Divisions emphasis was entirely consistent with precedent.
    As Nordheimer J. observed, at para. 28 of
Bishop
:

I agree with the Appeal Panel that the penalty imposed by the
    Hearing Panel was a reasonable one. It fulfills the two purposes set out in
Bolton
[preventing the lawyer from repeating the misconduct
    and maintaining the reputation of the profession]
. I acknowledge
    that there does not appear to be any real concern in this case that the
    appellant would repeat the conduct but that fact does not detract from the
    pressing need to send a consistent message that engaging in fraudulent conduct
    by a lawyer is a matter that will not be tolerated because of its impact on the
    profession as a whole. As was observed by Sir Thomas Bingham M.R. in
Bolton
,
    at p. 519:

The reputation of the profession is more important than the
    fortunes of any individual member. Membership of a profession brings many
    benefits, but that is a part of the price.

Although the majority of the Appeal Division quoted this
    passage from
Bolton
at para. 58, it does not appear to have given it any
    further thought.

[67]

In my view, Hearing Divisions consideration of general and specific deterrence
    in a case where the presumptive penalty is licence revocation was entirely reasonable.

(ii)

Did the Hearing Division assess the delay evidence properly?

[68]

The majority asserted the Hearing Division misdirected itself as to
    the effect of delay on penalty in light of the widened formulation of
    mitigating circumstances from
Bishop
(at paras. 48, 53, and 55).

[69]

This is not a fair reading of the Hearing Divisions penalty decision.
    The Hearing Division instructed itself correctly, at para. 21, that it would be
    wrong to adopt a restrictive reading of
Mucha
, in light of
Bishop
.
    After noting the holding in
Bishop
, it listed the mitigating
    circumstances advanced by Mr. Abbott at para. 22. The first raised the delay
    issue and its effect on the penalty squarely:

There was substantial delay in the investigation as was
    discussed in our prior reasons. While we did not order a stay of proceedings as
    asked, it is now submitted that the delay in this case and the attendant
    prejudice suffered by Mr. Abbott justifies a lesser penalty than revocation;

[70]

In the succeeding paragraphs the Hearing Division analyzed each of the
    grounds. It addressed delay at paras. 30-31:

Finally, we address the issue of delay.
We
    accept the submission that delay causing prejudice can be a mitigating factor
    in many cases. However, we do not accept that prejudice arising from delay in
    this case is a proper basis to turn revocation into a lengthy suspension.

The first reason is that we are not persuaded that much of the
    prejudice described by Mr. Abbott in his earlier evidence and during the
    penalty phase arises from investigative delay as opposed to from the issuance
    of the Notice of Application in the spring of 2013. The evidence of prejudice
    arising from investigative delay is quite limited as discussed in our decision
    on finding at paras. 32 to 60. While there was no doubt some prejudice, we do
    not find there to have been substantial prejudice arising from investigative
    delay. The evidence of prejudice was vague and general. Mr. Abbott sought no
    professional assistance during the investigation. There is no evidence from
    anyone about Mr. Abbott and his circumstances during the investigation. No
    medical or other expert evidence was adduced during the penalty phase of the
    hearing despite our earlier findings. To be clear, we continue to be concerned
    about the lengthy investigative delay in this case. However, our assessment
    here relates to the issue of prejudice arising from that delay.

(The second reason given by the Hearing Division
    emphasized general deterrence and was excerpted earlier in para. 65.)

[71]

The Appeal Division drew several mitigating circumstances from para. 22
    of the Hearing Divisions penalty decision, which included the following:

·

Prior
    to the real estate transactions of 2006 and 2007 that are in issue in this
    case, Mr. Abbott's conduct was unimpeached.

·

There
    were a limited number of problematic transactions over a few months.

·

Since
    these real estate transactions, Mr. Abbott's conduct is also unimpeached and
    his dealings with the Law Society in this matter have been entirely
    appropriate.

·

Mr.
    Abbott testified willingly and honestly.

·

Mr.
    Abbott has a reputation for honesty and integrity in support of which a number
    of letters were filed from colleagues and clients.

[72]

With respect, these mitigating circumstances are quite generic, and in
    the context of an active prosecution, one would expect the member to be on his
    best behaviour or risk making things worse. As for the supportive reference
    letters, it is well to keep in mind the observations of Sir Thomas Bingham M.R.
    in
Bolton
, at para. 16:

It often happens that a solicitor appearing before the Tribunal
    can adduce a wealth of glowing tributes from his professional brethren. He can
    often show that for him and his family the consequences of striking off or
    suspension would be little short of tragic. Often he will say, convincingly,
    that he has learned his lesson and will not offend again. On applying for
    restoration after striking off, all these points may be made, and the former
    solicitor may also be able to point to real efforts made to re-establish
    himself and redeem his reputation. All these matters are relevant and should be
    considered.
But none of them touches the essential issue,
    which is the need to maintain among members of the public a well-founded
    confidence that any solicitor whom they instruct will be a person of
    unquestionable integrity, probity and trustworthiness
. [Emphasis added.]

[73]

The Appeal Division asserted that the Hearing Division resiled from
Bishop
in stating that the evidence did not provide a credible explanation for Mr.
    Abbotts misconduct. The majority stated, at para. 55, that the locus of the
    Hearing Divisions error was in paras. 23 and 35 of the penalty decision, which
    I excerpt for convenience:

In our view, this all [referring to the claimed mitigating
    circumstances] falls far short of circumstances justifying anything other than
    revocation. Clearly, there is no "compelling psychiatric or psychological
    evidence that, among other things, credibly indicates not only that the
    misconduct was out of character and unlikely to recur, but explains why it
    occurred." There is no evidence that explains why the misconduct occurred
    or that it is unlikely to recur.



Ultimately, we conclude that revocation is the appropriate
    penalty given the gravity of the misconduct that we have found. We find no
    exceptional circumstances that would credibly explain the misconduct let alone
    credibly indicate that it is out of character and unlikely to recur.

[74]

At bottom, this review shows the majority simply disagreed with the
    Hearing Divisions reasoning about the effect of delay as an exceptional circumstance
    warranting the mitigation of Mr. Abbots penalty. In my view, the Hearing
    Division considered the right questions and gave cogent answers. The majority
    disagreed with the weight the Hearing Division gave to the prejudice to Mr.
    Abbott and the sufficiency of the evidence that he would not repeat the
    misconduct. However, in the absence of a palpable and overriding error of fact,
    a misapprehension, or an error of law, the issue of the weight of the evidence
    is not within the purview of an appellate body and does not constitute an error
    of law entitling it to intervene. The Hearing Division made no such errors
    here.

(iii)

What prejudice must be shown to warrant a reduction in the penalty?

[75]

The Hearing Division and the majority disagreed about the prejudice the
    affected member must show in order to warrant a reduction in penalty under the
    principles of
Blencoe
. The Hearing Division followed
Blencoe
s
    requirement that exceptional circumstances must be shown, while the majority
    backed away from such a high standard, going so far as to confine
Blencoe
to cases where a stay of proceedings is at issue (at para. 81).

[76]

The majority asserted the Hearing Division misapprehended
Blencoe
and erred in applying the more rigorous
Blencoe
test for a stay to its
    consideration of whether the delay could reduce Mr. Abbotts penalty (at para.
    82). The majoritys view was that while investigative and procedural delay
    coupled with the mitigating circumstances might not be sufficient to justify
a
    stay of proceedings
under
Blencoe
, the same delay coupled with
    the same mitigating circumstances could nonetheless warrant
a reduction in
    Mr. Abbotts penalty
(at para. 80). It asserted that beyond the context of
    a stay application, the applicable prejudice test was much less onerous (at para.
    81).

[77]

The sense conveyed by the majoritys reasons is that once a tribunal is
    out from under the onerous burden relating to a stay of proceedings, then it is
    free to indulge para. 117 of
Blencoe
, where Bastarache J. noted that
    other remedies might be available. The majority relies especially on the
    minority reasons in
Blencoe
, which it explains at para. 66. The
    linchpin to the majoritys approach is found in para. 73: There is no basis,
    in our respectful view, to carve out revocation cases from the application of
    the impact of institutional delay.

[78]

I do not agree. In my view it is appropriate to carve out revocation
    cases. The key point made in all of the mortgage fraud lawyer discipline cases
    is that dishonest misconduct presumptively results in revocation. It is in a
    different register, or of a different quality, than other lawyerly misconduct.
    The cases question whether, in the public interest, the profession can accept
    the continued licensing of a person who has shown himself to be willing to
    participate, for personal gain, in stealing someone elses money; does the
    member have the moral character to continue to be in a position of trust? To
    repeat the words of Sir Thomas Bingham M.R. in
Bolton
, at para. 16,
    the character question gets at the need to maintain among members of the
    public a well-founded confidence that any solicitor whom they instruct will be
    a person of unquestionable integrity, probity and trustworthiness.

[79]

The same sense of gravity reflected in the presumptive revocation
    penalty for dishonesty must be brought to bear on the assessment of the
    prejudice suffered by the lawyer as a result of the delay. The prejudice must
    be very serious.

[80]

In my view, the majority did not pay sufficient attention to the
    statement of Bastarache J. at para. 122 of
Blencoe
: the determination
    of whether a delay is inordinate is not based on the length of the delay alone,
    but on contextual factors, including the nature of the various rights at stake
    in the proceedings, in the attempt to determine whether the community's sense
    of fairness would be offended by the delay. In the case of mortgage fraud, the
    significant contextual factor is the presumptive penalty and the need to
    reassure the public of the integrity of the legal profession.

[81]

The majority referred to several cases which, in my view, are
    unpersuasive authority for the proposition that a penalty short of revocation
    was called for.

[82]

In
Wachtler v. College of Physicians and Surgeons of the Province of
    Alberta
, 2009 ABCA 130, 448 A.R. 317,the Council of the College found Dr.
    Wachtler guilty of unbecoming conduct concerning his drug-prescribing
    practices. The Council increased his suspension by two months from the penalty recommended
    by the Investigating Committee and required him to pay costs. In light of the 35-month
    delay, the Court of Appeal of Alberta set aside the two-month increase in the
    suspension and the costs award. The penalty imposed by the Council was not the
    termination of his licence to practise medicine, but what the College suggested
    was a rehabilitative rather than a deterrent penalty (at para. 43).

[83]

The majority also cited
Law Society of Upper Canada v. Marler
,
    2014 ONLSTH 203. The Hearing Division found the lawyer had committed
    professional misconduct, at para. 15, by letting the [office] manager operate
    on his own with little or no direct supervision, which enabled the manager to
    steal over $600,000 in trust funds. The member did not personally engage in
    intentional misconduct. The delay in
Marler
was found to be seven
    years. The case slipped through the cracks because the Law Society was swamped
    by mortgage fraud claims (at para. 29). Both the Law Society and the member
    agreed that the delay along with several other strong mitigating factors should
    mitigate the penalty. The normal penalty was a suspension not revocation, and
    it was accordingly set at the low end of the range, at 90 days (at para. 37).

[84]

The majority also cited
Law Society of Upper Canada v. Totera
, 2014
    ONLSTA 45, revd 2016 ONSC 1578, 347 O.A.C. 59 (Div. Ct.), a decision of the
    Appeal Division. The Divisional Courts reasons setting aside that decision were
    released March 8, 2016, after Appeal Division rendered its decision in this
    case. The allegation was that the member had knowingly participated in twelve
    fraudulent real estate transactions. The Hearing Panel found that the lawyer
    had not knowingly participated in mortgage fraud or failed to be honest or
    candid. It then dismissed the application on the basis of a five year delay.
    The Divisional Court set out the parties positions, at para. 22:

The parties agree that there was inordinate delay, and the Law
    Society does not dispute that the public interest would not be compromised if
    the Disciplinary Proceeding against the Appellant were dismissed as the Hearing
    Panel concluded that the Appellant did not knowingly participate in mortgage
    fraud or fail to be honest or candid.

[85]

The issue was whether the member had proven he suffered serious personal
    prejudice resulting from the delay under
Blencoe
. The Appeal Division
    seized on an error in the Hearing Panels decision in which it stated that the
    member had not been cross-examined, and ordered a new hearing. However, the
    Divisional Court found that the Hearing Panels failure to consider the members
    cross-examination did not undermine its conclusion that the member suffered
    serious psychological harm as a result of the delay in the investigation (at para.
    59). Accordingly, the Divisional Court set aside the Appeal Divisions order
    and re-instated the Hearing Panels dismissal of the prosecution based on
Blencoe
.

[86]

The majority also cited the
Law Society of Upper Canada v. Durno
,
    2015 ONLSTH 122, in support of the proposition that delay could result in a
    lesser penalty. The member admitted to knowingly assisting in mortgage fraud in
    eight real estate transactions. There were mitigating circumstances in addition
    to a delay of nearly a decade between the time the investigation started and
    its culmination, (there was an earlier application and an appeal that led back
    to the Hearing Division). Instead of revoking his licence, the Hearing Division
    permitted him to resign. In
Durno
, the Hearing Division emphasized, at
    para. 104, an important contextual point to which the majority in this case did
    not refer:

The appeal panel in
Mucha
acknowledged, at para. 30,
    that "
the circumstances
    justifying permission to resign (which also results in a termination of licence)
    may be less exceptional than those that could ever justify a disposition that
    does not involve termination
." [Emphasis in
Durno
.]

[87]

The cases cited by the majority are all distinguishable and provide no
    guidance in a case where the presumptive penalty is licence revocation. Things
    are substantially different where the usual penalty is less than outright
    licence revocation.
Totera
was a straight application of
Blencoe
leading
    to dismissal for delay. In
Durno
the member would no longer be
    practising law.

[88]

It is arguable that, under
Blencoe
, delay could mitigate the
    presumptive penalty of licence revocation if the delay amounts to an abuse of
    process. However, where there is a presumptive penalty of licence revocation, a
    member should be obliged to establish that the delay was so egregious and
    caused him such personal prejudice that revoking his licence to practise law
    would bring the regulatory system for lawyers into disrepute. The Hearing
    Division did not err by following
Blencoe
and insisting the penalty
    should be reduced only where the member could show that the delay was the cause
    of substantial prejudice.

[89]

In contrast to
Blencoe
, the majority of the Appeal Division considered
    that any prejudice to Mr. Abbott from the delay could give rise to a remedy and
    would have inferred prejudice from the delay (at para. 79), noting that Mr. Abbott
    did not have to prove substantial prejudice to himself (at para. 80). This
    was an error.

[90]

In setting a penalty, the adjudicator should take into account in
    possible mitigation such factors as the Law Societys investigative and
    procedural delay, the prejudice to the interest of the public in a timely
    investigative and prosecutorial process, and to the interests of licensees more
    generally, to which the Appeal Division alluded. However, to convert a
    presumptive licence revocation into a lesser penalty that allows a member to
    continue to practise law requires egregious personal prejudice of the kind
    demanded by the Supreme Court in
Blencoe
as necessary to establish an
    abuse of process. As the Hearing Division found, this case does not meet that
    standard.

(iv)

Concluding Observations on the Majoritys Errors

[91]

In my view, the Hearing Division did not make any palpable and
    overriding errors in apprehending the evidence, nor did it make any errors of
    law. Its reasons were reasonable in the sense expressed by the Supreme Court in
Dunsmuir
, at para. 47, in that they demonstrate the existence of
    justification, transparency and intelligibility within the decision-making
    process." The Hearing Divisions imposition of the presumptive penalty
    fell within the range of possible, acceptable and defensible outcomes that were
    open to it on the evidence.

[92]

The findings of the Appeal Division that the Hearing Division made errors
    of law reflect its strong resolve to impose a lesser penalty than revocation on
    Mr. Abbott in order to send a message to the Law Society that delay is
    unacceptable, as the dissent pointed out. In doing so the Appeal Division
    exceeded its responsibility as an adjudicative body and misapprehended
Blencoe
.
    It did not defer to the Hearing Division but actively sought to subvert its
    reasoning, contrary to the Supreme Courts reasoning in
Newfoundland Nurses
.
    These were clear errors in principle.

D.

Did the Divisional Court err in dismissing the Law Societys appeal of
    the Appeal Divisions order?

[93]

This courts approach in an appeal from the Divisional Court on an
    administrative law matter is to step into the shoes of the lower court and
    focus on the administrative decision:
Groia
,

at para. 49;
Ottawa
    Police Services v. Diafwila
, 2016 ONCA 627, 352 O.A.C. 310, at para. 51.

[94]

The question to ask is whether the Divisional Court identified the
    correct standard of review and applied it properly: see
Agraira v. Canada (Public
    Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at
    paras. 45-47. The court does not take the same approach as is does to an appeal
    from a lower court:
Groia
, at para.
54, citing
Mouvement
    laïque québécois v. Saguenay (City)
, 2015 SCC 16, [2015] 2 S.C.R. 3, at
    paras.
29, 37-38 and 43.

[95]

Acting as the appeal court, the Divisional Court is to apply a
    presumption of reasonableness to decisions of specialized professional
    disciplinary bodies like the Appeal Committee, as this court noted in
Groia,
at paras. 55-62, following Supreme Court jurisprudence post-
Dunsmuir
.
    But reasonableness review is not a rubber stamp.

[96]

This court owes no deference to a decision of the Divisional Court on
    judicial review:
Diafwila
, at para. 51.

[97]

In my view the Divisional Court erred in failing to apply the recognized
    principles of reasonableness review referred to earlier, to ensure that the
    Appeal Division deferred appropriately to the penalty decision of the Hearing
    Division, just as the court does with respect to the decisions of specialized
    professional disciplinary bodies. The errors in the Appeal Divisions approach
    were laid out earlier and need not be repeated. The Divisional Court erred in
    failing to grapple with them. The Appeal Divisions decision was unreasonable
    and the Law Societys appeal ought to have been allowed.

E.

Disposition

[98]

I would allow the appeal from decision of the Divisional Court, set
    aside the decision of the Appeal Division of the Law Society Tribunal on
    penalty and reinstate the penalty of licence revocation ordered by the Hearing
    Division, with costs payable to the Law Society fixed as agreed at $15,000
    inclusive of disbursements and taxes.

Released: RJS JUN 23 2017

P. Lauwers J.A.

I agree. Robert J.
    Sharpe J.A.

I agree. B.W. Miller
    J.A.


F.

Appendix A

Chronology



DATE

DESCRIPTION



Late 2006/Early 2007

Eight transactions involving alleged mortgage fraud



February 22, 2007

Bridgewater Bank, Mr. Abbotts client, advises him of its
          concerns of possible mortgage fraud involving two of the transactions



February 26, 2007

Bridgewater complains to the Law Society



March 2007

Law Society investigation authorized



April 19, 2007

Law Society investigator requires production of Mr.
          Abbotts client files and trust ledgers



November 6, 2012

Investigation report issued



April 9, 2013

A notice of application for a determination by the Law
          Society Hearing Panel of whether the respondent had contravened s. 33 of the
Law
          Society Act
by engaging in professional misconduct



May 23, 2013

Mr. Abbott moves for an order staying or dismissing the
          application for delay



August 18, 19, 20 and 21, 2014

Hearing before the Hearing Division



October 10, 2014

Decision of the Hearing Division



October 10, 2014

Order of the Hearing Division dismissing Mr. Abbotts
          motion for an order staying or dismissing the application for delay



December 4, 2014

Hearing Divisions penalty submissions



January 22, 2015

Hearing Divisions penalty decision and order



March 24, 2015

Appeal Decision Hearing



September 14, 2015

Appeal Division decision and order allowing the appeal in
          part



January 5, 2016

Divisional Court Hearing of the Law Societys appeal



February 10, 2016

Divisional Court decision released



May 25, 2016

Law Societys notice of appeal to the Court of Appeal




