



COURT OF APPEAL FOR ONTARIO

CITATION: Law Society of Ontario v. Diamond,
    2021 ONCA 255

DATE: 20210422

DOCKET: C67732

Fairburn A.C.J.O., Pepall and
    Roberts JJ.A.

BETWEEN

The Law
    Society of Ontario

Applicant (Respondent)

and

Jeremy Dov Diamond

Respondent (Appellant)

Brian H. Greenspan and Naomi M. Lutes,
    for the appellant

Leslie Maunder, for the respondent

Heard: November 9, 2020 by video conference

On appeal from the order of the
    Divisional Court (Justices Harriet E. Sachs, Maria T. Linhares de Sousa and
    Julie A. Thorburn), dated May 29, 2019, with reasons reported at 2019 ONSC 3228,
    dismissing an appeal from an order of the Law Society Tribunal Appeal Division,
    dated August 1, 2018, with reasons reported at 2018 ONLSTA 11, affirming an
    order of the Law Society Tribunal Hearing Division, dated September 21, 2017, with
    reasons reported at 2017 ONLSTH 191.

Fairburn A.C.J.O.:

A.

Overview

[1]

In the fall of 2016, the Law Society of Ontario started
    an investigation into the appellants law firm, focussing on the firms
    structure and referral fee practices. Over a period of many months, the Law
    Society asked the appellant to produce various documents and information required
    for the ongoing investigation. There was a great deal of back-and-forth
    communication between the appellants counsel at the time and the Law Society.
    However, the requested documents and information were not fully produced until approximately
    eight and a half months after the initial request was made.

[2]

The Law Society eventually commenced an
    application before the Law Society Tribunal Hearing Division (the Hearing
    Division), alleging that the appellant engaged in professional misconduct by
    failing to reply promptly and completely to the Law Societys requests, thereby
    breaching r. 7.1-1 of the Law Societys
Rules of Professional Conduct
.
    This rule invokes a lawyers duty to cooperate with the Law Society when a
    response is requested. Ultimately, the Hearing Division concluded that the appellant
    had failed to adhere to his obligations under r. 7.1-1 of the
Rules of
    Professional Conduct
.

[3]

Following the finding of professional
    misconduct, the Hearing Division ordered that the appellant be reprimanded,
    which was recognized as the usual penalty where a failure to co-operate has
    been remedied by a full response by the time of the scheduled hearing. In
    addition to the reprimand, the appellant was ordered to pay $25,000 in costs to
    the Law Society.

[4]

The decision of the Hearing Division was later affirmed
    by the Law Society Tribunal Appeal Division (the Appeal Division), and the
    Appeal Division decision was upheld by a panel of the Divisional Court.
    Therefore, this appeal constitutes the third level of review.

[5]

The appellant argues that, while there may have
    been failings regarding the form of his communications with the Law Society, he
    did not fail to cooperate with the regulatory body. Accordingly, the appellant maintains
    that the history of this matter is more properly characterized as a failure to
    communicate than a failure to cooperate with the Law Society.

[6]

The appellant contends that the finding that he
    failed to cooperate arises from an erroneous understanding of the concept of
    good faith. He submits that the Divisional Court erred in upholding and endorsing
    a far too narrow interpretation of good faith, one that imposes a purely
    objective test on the duty to cooperate. This is said to wrongly result in the creation
    of an absolute liability offence. The appellant argues that had a proper
    approach been taken to the question of good faith, one focussed on both subjective
    and objective criteria, he would not have been found guilty of professional
    misconduct.

[7]

For the reasons that follow, I would dismiss the
    appeal.

B.

The Regulatory Context

[8]

Rule 7.1-1 of the Law Societys
Rules of
    Professional Conduct
lies at the heart of this appeal. It requires the
    following:

A lawyer
shall reply
    promptly and completely
to any communication from the Law Society in
    which a response is requested. [Emphasis added.]

[9]

On October 17, 2016, the Law Society
    investigator sent a letter to the appellant and made requests for documents and
    information needed for an investigation into the structure and referral fee
    practices of the appellants law firm. On that date, among other things, the
    Law Society investigator asked for copies of the appellants general receipts
    journal and general monthly bank statements. A further request letter was sent
    on December 13, 2016. Later, in a third letter dated February 14, 2017, the Law
    Society investigator requested, among other things, copies of certain cancelled
    cheques, deposit slips, and the appellants general disbursements journal. Without
    exception, the requested items fell within the parameters of those documents
    required to be kept by licensees: see By-Law 9, ss. 18.5-18.6 and 18.10, made
    pursuant to the
Law Society Act
,
    R.S.O. 1990, c. L.8
.

[10]

In the months that followed the initial and
    subsequent requests, there was a significant amount of back-and-forth
    communication between the appellants counsel and the Law Society that included
    fourth and fifth formal request letters, sent on March 28, 2017 and April 3,
    2017 by the Law Society to the appellant for records. Eventually, on May 10,
    2017, almost seven months following the original request, the Law Society
    commenced an application before the Hearing Division, pursuant to s. 34(1) of
    the
Law Society Act
, alleging that the appellant engaged in
    professional misconduct in contravention of s. 33. Specifically, the Law
    Society alleged that: (a) the appellant failed to maintain some of the required
    books and records in full compliance with s. 18 of By-Law 9; and (b) he did not
    cooperate fully with the Law Societys investigation into his professional
    conduct by failing to produce the requested information and documentation.

[11]

Eventually, all requested records were produced
    by late June and early July 2017, approximately eight and a half months after
    the Law Societys initial request. Having the requested documentation in hand,
    the Law Society withdrew the first allegation respecting the failure to
    maintain books and records in compliance with s. 18 of By-Law 9. This left the second
    allegation involving the failure to cooperate fully with the Law Societys
    requests as the sole matter to be determined by the Hearing Division.

C.

THE Reasons BELOW

(1)

The Hearing Divisions Reasons

[12]

The Vice-Chair of the Hearing Division (the
    Vice-Chair) provided comprehensive reasons for why he concluded that the
    appellant had engaged in professional misconduct by breaching r. 7.1-1 of the
Rules
    of Professional Conduct
. Having extensively reviewed the evidence,
    including the general back-and-forth communications between the appellants
    counsel and the Law Society, the Vice-Chair came to specific conclusions in
    relation to six categories of records formally requested by the Law Society in
    five letters sent on and between October 17, 2016 and April 3, 2017. Regarding five
    of those categories of documents, the Vice-Chair found that the appellant
    failed to cooperate with the Law Society.

(a)

General Receipts Journal and General Disbursements Journal

[13]

On October 17, 2016, the Law Society investigator
    initially asked the appellant for copies of his general receipts journal for
    the period of October 2013 to October 2016. Later, on February 14, 2017, the
    Law Society investigator made a similar request respecting copies of the
    appellants general disbursements journal. After a review of the evidence, the
    Vice-Chair determined the following:

[I] conclude that there was no excuse for the [appellants]
    failure to provide the documentation required by By-Law 9, ss. 18(5) and (6),
    long before July 4, 2017 [the date all the necessary records were generated].
    It should not have taken four written requests, spanning over eight months, to
    obtain the information required by s. 18(5) [the general receipts journal] and
    by the Law Societys investigator. It should not have taken two written
    requests, spanning almost five months, to receive the information required by
    s. 18(6) [the general disbursements journal], and by the Law Societys
    investigator.

[14]

The Vice-Chair then indicated that there should
    have been no mystery about the requirements of the By
[-L]
aw and that the appellant knew or should have known about his
    obligations to comply with the By-Law. As noted by the Vice Chair, The
    sequence of requests and responses represented a cat and mouse game that has
    no place in the relationship between licensee and regulator.

(b)

General Monthly Bank Statements

[15]

On October 17, 2016, the Law Society
    investigator requested that the appellant provide general monthly bank account statements
    for the period of October 2013 to October 2016. The appellant used two general
    accounts: one with CIBC and the other a TD line of credit. Again, there was
    repeated back-and-forth communication between the appellants counsel and the
    Law Society respecting these bank statements. In the end, it took eight months
    to fully complete this request in what the Vice-Chair described as four
    tranches.

[16]

While the requested bank statements for the CIBC
    account were provided without excessive delay, the requested bank statements
    for the TD line of credit involved a muddier sequence of compliance. These TD
    bank statements were not fully provided until June 22, 2017. Ultimately, the
    Vice-Chair concluded that the Law Societys request respecting the bank records
    was straightforward in nature and should have been fully answered long before
    eight months had passed. In fact, while acknowledging that the delay in
    providing the CIBC bank statements was not excessively long, the Vice-Chair noted
    that it should not have been difficult to provide these documents  within the
    four week deadline that was set by the Law Society in its first request
    letter.

(c)

Cancelled Cheques

[17]

When the requested general monthly bank
    statements and general receipts journal were not provided, the Law Society made
    additional requests. On February 14, 2017, the Law Society investigator made a
    request for a more granular form of documentation, including cancelled cheques
    relating to the CIBC and TD general accounts for the period of October 1, 2013
    to October 31, 2016. This request was designed to provide the underlying
    information that would have been reflected in the bank statements and general
    receipts journal had they been provided. The Law Society investigator set an
    initial deadline of March 3, 2017 to provide these cancelled cheques. This
    deadline was later extended to March 30, 2017.

[18]

On April 7, 2017, the appellants counsel asked,
    during a phone call, whether the Law Society could narrow the request or pay
    the costs to obtain the cancelled cheques. While the Law Society investigator said
    that she would need to obtain instructions on this point, she ultimately never
    responded to this request, and the appellants counsel never asked for this again.
    Instead, the Law Societys request for the cancelled cheques was repeated on
    May 29, 2017, with a new deadline of June 19, 2017. The cheques were then
    ordered and paid for by the appellant on June 12, 2017 and ultimately produced
    on June 22, 2017.

[19]

The Vice-Chair concluded that the appellants request
    that the Law Society pay to obtain the cancelled cheques was not appropriate,
    particularly because it would involve the regulator diverting membership dues
    to the appellants bank to obtain records that the appellant was obligated to
    keep. Therefore, the Law Societys failure to respond to the appellants
    request was irrelevant and did not factor into the assessment as to whether the
    appellant cooperated with the Law Society.

[20]

Ultimately, the Vice-Chair concluded that the appellants
    failure to cooperate crystallized in his response on April 7, 2017 to the Law
    Societys February 14, 2017 request. As licensees have an obligation to
    maintain these types of records, the cancelled cheques should have been provided
    promptly.

(d)

Deposit Slips

[21]

Like the request for the cancelled cheques, when
    the Law Society hit a wall in terms of obtaining the general receipts journal
    and general monthly bank statements, the investigator sought more granular
    information on February 14, 2017, including deposit slips from the bank account
    into which the appellant deposited the referral fees he received. The Law
    Society investigator set a deadline of March 3, 2017 to provide the requested
    deposit slips, which was the same deadline as to provide the cancelled cheques.

[22]

On March 10, 2017, the appellant initially
    advised the Law Society that he did not retain deposit slips and therefore
    could not provide the requested documentation. However, following a discussion
    with his bookkeeper some three months later in June 2017, the appellant
    discovered he did have copies of some of the deposit slips. The deposit slips
    from October 2013 to October 2016 were finally provided to the Law Society on
    June 22, 2017, although a few could not be located. Again, while these
    documents were required to be maintained pursuant to s. 18(10) of By-Law 9, it
    took over four months to provide copies to the Law Society. The Vice-Chair
    concluded that there was unreasonable delay in providing the documents as
    requested.

(e)

Conclusion

[23]

In the end, the Vice-Chair concluded that the
    appellant had breached r. 7.1-1 of the
Rules of Professional Conduct
,
    and therefore committed professional misconduct,

by failing to provide a
    prompt and complete response to all of the above requests made by the Law
    Society.

(2)

The Appeal Division and the Divisional Court

[24]

The appellant challenged the Vice-Chairs
    decision. The Appeal Division held that the Vice-Chairs conclusions, in
    relation to all of the above categories of documents, were reasonable. The
    Divisional Court, in turn, upheld the Appeal Divisions decision. I will
    discuss the reasons of the Appeal Division and the Divisional Court in further
    detail below.

D.

Analysis

(1)

Overview of the Appellants Position

[25]

The appellant argues that, properly approached,
    determining whether someone has breached r. 7.1-1 of the
Rules of
    Professional Conduct

by failing to reply promptly and completely
    to any communication from the Law Society in which a response is requested
    requires an assessment of the licensees good faith efforts.

[26]

The appellant submits that the Divisional Court
    erred by upholding and endorsing a far too narrow interpretation of the concept
    of good faith, one that is strictly fixated upon delay and what a licensee ought
    to know about their record-keeping obligations. The appellant contends that
    such a purely objective approach erroneously reverses the burden of proof and leaves
    no room for honest mistakes, lapses in judgment, confusion, and accidents.

[27]

According to the appellant, the determination of
    good faith requires consideration of both subjective and objective criteria, focussing
    on the licensees conduct and motivations. Indeed, the appellant encourages
    this court to find that anything less than something akin to a clear refusal
    to cooperate should fall short of the mark in terms of finding professional
    misconduct by breaching r. 7.1-1 of the
Rules of Professional Conduct
.

[28]

By only focussing upon objective criteria, the appellant
    contends that the Divisional Court, and the Appeal Division and Hearing
    Division before it, erroneously ignored the almost uninterrupted exchange of
    communications between his counsel and the Law Society, whereby attempts were
    made to cooperate with the Law Society in meeting its demands. While the
    appellant acknowledges that he may have exhibited signs of confusion at times,
    he never refused to cooperate with the Law Society. He maintains that, had the
    Divisional Court, and the Appeal Division and Hearing Division before it, not
    applied such an erroneously restrictive approach to the concept of good faith,
    he would not have been found guilty of professional misconduct by failing to
    cooperate.

[29]

For the reasons that follow, I do not agree.

[30]

While the appellant is correct that both subjective
    and objective criteria must be considered in determining whether there has been
    a failure to cooperate, in my view, there is no need to establish a clear
    refusal to cooperate with the Law Society, in the sense of an outright refusal
    to cooperate, before a finding of professional misconduct can be made. Any such
    approach would distort the test and undermine the self-regulating nature of the
    profession.

[31]

As I will explain, the test for failing to
    cooperate is well-established and needs no alteration. It is both a subjective
    and objective test, one that takes into account all of the circumstances,
    including a licensees good faith efforts to respond promptly and completely,
    when determining whether a licensees conduct amounts to professional
    misconduct. As I will also explain, this is precisely how the Vice-Chair
    approached his task and what the Appeal Division and Divisional Court focussed
    upon when upholding the Vice-Chairs conclusions.

(2)

Standard of Review

[32]

The decisions below pre-date the Supreme Court
    of Canadas decision in
Canada (Minister of Citizenship and Immigration) v.
    Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1.

[33]

It is uncontested that, since
Vavilov
,
    where the legislature has provided for an appeal from an administrative
    decision to a court, the reviewing court is to apply appellate standards of
    review to the decision:
Vavilov
,
at para. 37;
Housen v. Nikolaisen
, 2002 SCC 33,
[2002] 2 S.C.R. 235.
Here, there was an
    appeal from the Appeal Division to the Divisional Court under s. 49.38 of the
Law
    Society Act
. Had the appeal to the Divisional Court been decided post-
Vavilov
,
    instead of applying a reasonableness standard of review, the Divisional Court
    would have looked to the standards of review described in
Housen
.
    Under
Housen
, the reviewing court is to apply a standard of
    correctness to questions of law, while a standard of palpable and overriding
    error is to be applied to questions of fact and questions of mixed fact and law
    where the legal principle is not readily extricable:
Vavilov
, at para.
    37;
Housen
, at paras. 8, 10, 33 and 36.

[34]

In reviewing the Divisional Courts decision,
    this court essentially steps into the shoes of the Divisional Court:
Agraira
    v. Canada (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013]
    2 S.C.R. 559, at paras. 45-46;
Longueépée v. University of Waterloo
,
    2020 ONCA 830, 153 O.R. (3d) 641, at para. 47. In doing so,
the appellate courts focus is, in effect, on the
    administrative decision:
Agraira
, at
    para. 46, citing
Merck Frosst Canada Ltd. v. Canada (Health)
, 2012 SCC 3,
[2012] 1 S.C.R. 23, at para. 247
. In this case, the administrative decision is the decision
    of the Appeal Division upholding the decision of the Hearing Division.

[35]

The parties do not agree upon the appellate standard
    of review to be applied in this case.

[36]

The appellant says the correctness standard of
    review should be applied, emphasizing that his main objection on appeal rests
    with an alleged overarching extricable error of law pertaining to the legal
    approach for ascertaining whether a licensee has acted in good faith when
    responding to the Law Societys requests. In contrast, the Law Society indicates
    that the standard of review is palpable and overriding error, as determining
    what amounts to good faith is a question of mixed fact and law with no
    extricable legal issue.

[37]

I agree that the appellants primary position is
    focussed upon a pure question of law, involving the parameters of the legal test
    to be applied when assessing a licensees alleged failure to cooperate with the
    Law Society pursuant to r. 7.1-1 of the
Rules of Professional Conduct
.
This question of law is reviewable on a
    standard of correctness:
Vavilov
, at para. 37;
Housen
, at
    para. 8.

[38]

However, as will be seen, I do not accept that there
    was an extricable error of law. The test for assessing a failure to cooperate
    was correctly identified by the Hearing Division, the Appeal Division, and the
    Divisional Court.

[39]

Therefore, the question of whether the appellant
    engaged in professional misconduct in the circumstances of this case, the real crux
    of this appeal, is a clear question of mixed fact and law, one reviewable on a
    standard of palpable and overriding error.

(3)

The Correct Test for Determining a Failure to Cooperate

[40]

I will start by explaining how the Hearing
    Division, Appeal Division, and Divisional Court explained the test to be
    applied when determining whether a licensee has failed to cooperate with the
    Law Societys requests. I will then explain why I would not accept the
    appellants suggestion that the Hearing Division, Appeal Division, or
    Divisional Court got the test wrong.

(a)

The Legal
    Test as Described Below

[41]

Close to the outset of the Vice-Chairs reasons,
    he explained that he perceived his task as largely to make findings of fact,
    drawing inferences where appropriate from the overall context and dealings
    between the parties, and to apply the well-established legal principles in
    order to determine whether the
[appellant]
complied promptly and completely to the Law Societys requests. He
    then went on to summarize those well-established legal principles, with the
    Vice-Chair noting that 
[t]he parties agreed on the
    applicable jurisprudence.


[42]

The Vice-Chair placed particular emphasis upon
    two decisions in setting out the test for determining whether a licensee has
    failed to cooperate
:

Law Society of Upper Canada v. Ghobrial
,
    2014 ONLSHP 5, and
Law Society of Upper Canada v. Boissonneault

(May
    23, 2008), Toronto, CN04
/08
(Law Society of Upper
    Canada Hearing Panel). The Vice-Chair quoted from both decisions, including a
    passage from para. 8 of
Ghobrial

that references the
    straightforward nature of evaluating whether a licensee committed
    professional misconduct by failing to cooperate with the Law Societys
    requests. The Vice-Chair set out the following passage from para. 8 of
Ghobrial
,
    emphasizing the need to take all of the circumstances into account when
    determining good faith efforts:

The issue is whether the licensee received
    correspondence requesting a reply, and
acted in good
    faith to provide a complete and prompt response
. The question of whether
    the response was complete and prompt must be determined by the adjudicator based
    on
all the circumstances
, including how the
    requests were expressed and what was required in order to fulfil them. [Emphasis
    added.]

[43]

The Vice-Chair also quoted from para. 8 of
Ghobrial

in relation to the fact that the assessment of good faith efforts and failing
    to provide a prompt response to the Law Society is not informed by merely
    missing a deadline. In other words, mere delay does not, on its own, amount to
    failing to provide a prompt response. Rather, all of the circumstances must be
    considered.

[44]

The Vice-Chair went further and, through quoting
    from
Boissonneault
,

explained how the question of good faith
    can be determined. The passage from
Boissonneault
, as cited by the
    Vice-Chair, makes clear that, whatever nuances might be involved in the term
    cooperate, its meaning is simple in the context of a licensees
    relationship with the Law Society, requiring that the licensee shall be, in
    relation to the
[Law]
Society
    in its supervisory and investigatory functions,
honest,
    open and helpful
 (emphasis added). See also
Law Society of Upper
    Canada v. Cucci
, 2012 ONLSHP 131,
at para. 21;
Law Society of Upper Canada v. Gray
, 2011 ONLSHP 198,
at para. 78;
Law Society
    of Upper Canada v. Rosenthal
, 2011
    ONLSHP 103,
at para. 86;
Law Society of Upper Canada v. Leahy
,
2014 ONLSTH 104, at para. 18;
Law
    Society of Upper Canada v. Gavris
,
2015 ONLSTH 144, at para. 8.

[45]

The Appeal Division also embraced the
Ghobrial
and
Boissonneault
decisions as reflective of the correct legal
    approach to determine if a licensee has cooperated in providing prompt and
    complete responses to the Law Society. The Chair of the Appeal Division (the
    Chair), who authored the Appeal Divisions decision, reinforced the critical
    component of operating in good faith relative to the Law Society and
    emphasized that there is not necessarily misconduct merely because the
    licensee did not provide the documents quickly.

[46]

Indeed, the Appeal Division suggested that
    embedding the words good faith into the assessment recognized that a licensee
    would not necessarily be found guilty of professional misconduct merely on the
    basis of failing to meet the Law Societys timelines. According to the Appeal
    Division, if factors beyond the licensees control resulted in the inability to
    respond to the Law Society, then a finding of professional misconduct may not
    result. Even so, as noted by the Chair, 
[g]
ood faith is more than an absence of bad faith, because 
[t]o act in good faith,

the licensee must be honest, open and helpful to the Law
    Society in fulfilling its regulatory functions
.

[47]

The Appeal Division also specifically adverted
    to the record-keeping requirements imposed upon licensees. The Chair pointed
    out the Appeal Divisions view that a failure to comply with or to be aware of
    ones record-keeping obligations as a licensee could not constitute a good
    faith explanation for delay. If such ignorance by a licensee could constitute
    good faith, then it would be inconsistent with the purpose of the duty to co-operate.

[48]

The Divisional Court also weighed in on the
    importance of good faith to the failure to cooperate analysis. Like the Appeal
    Division, the Divisional Court emphasized that 
[g]
ood faith is more than an absence of bad faith. Drawing on
    jurisprudence applying s. 24(2) of the
Canadian Charter of Rights and
    Freedoms
by way of analogy, Sachs J. made the following observation:

One of the factors that a court must consider
    in deciding whether to admit evidence that was obtained in a manner that
    violated the
Charter
is the seriousness of the
Charter
-infringing
    state conduct. Evidence that the police were acting in good faith may reduce
    the need for the court to disassociate itself from the police conduct.
    However, the court also made it clear that ignorance of
Charter
standards or negligence cannot be equated with good faith. Similarly, in the
    duty to co-operate context,
a lawyer cannot be found to
    have acted in good faith to provide a complete and prompt response when the
    basis for their delay is their ignorance of their professional obligations or
    their negligence in making the efforts they are required to make to provide the
    requested information promptly
. [Citations omitted; emphasis added.]

[49]

I do not accept the suggestion that Sachs J. was
    comparing state conduct considered within the context of the application of s.
    24(2) of the
Charter

with the conduct of lawyers considered
    within the context of Law Society proceedings. Rather, Sachs J. turned to s.
    24(2) jurisprudence to make the simple, yet analogous observation that the
    absence of bad faith, in whatever environment, does not necessarily equate to
    good faith. Light can in fact penetrate between those two concepts.

[50]

In the end, the test for determining a failure
    to cooperate with the Law Societys requests, as espoused by the Hearing
    Division, the Appeal Division, and the Divisional Court, focusses on the determination
    of a licensees good faith efforts to cooperate with the Law Society. While
    articulated slightly differently by the Hearing Division, the Appeal Division,
    and the Divisional Court, the following considerations emerge from these
    decisions: (a) all of the circumstances must be taken into account in
    determining whether a licensee has acted responsibly and in good faith to
    respond promptly and completely to the Law Societys inquiries; (b) good faith
    requires the licensee to be honest, open, and helpful to the Law Society; (c) good
    faith is more than an absence of bad faith; and (d) a licensees uninformed ignorance
    of their record-keeping obligations cannot constitute a good faith
    explanation of the basis for the delay.

(b)

The Correct Test was Identified

[51]

The appellant claims that the decisions demonstrate
    a strictly objective approach to the question of good faith. I do not agree. As
    just reviewed, each decision relied upon long-standing authorities, as accepted
    by the parties below. Those authorities insist upon a consideration of all of
    the circumstances, including whether the licensee acted in an honest, open, and
    helpful way.

[52]

Therefore, contrary to the appellants position,
    the legal test articulated by the Vice-Chair, and then later on review, is one
    that permits a consideration of all the facts, looked at through both a
    subjective and objective lens. There is nothing about this approach that
    excludes consideration of the licensees conduct, including but not limited to
    whether the licensee was honestly mistaken or confused or suffered from a mere
    lapse in judgment. While the Vice-Chair in this case found no such confusion,
    honest mistake, or lapse in judgment, instead finding a cat and mouse game as
    it related to some of the requested documents, his ultimate conclusions do not
    mean that he got the legal test wrong.

[53]

The appellant also objects to the Appeal
    Divisions proposition, as reinforced by the Divisional Court, that 
[i]
t would be inconsistent with the purpose
    of the duty to co-operate to find that a licensees failure to comply with or
    to be aware of their record
[-]
keeping
    obligations was a good faith explanation for a delay. The appellant maintains
    that such a narrow perspective improperly conflates the licensees record-keeping
    requirements with the test for failing to cooperate.

[54]

In support of this proposition, the appellant
    analogizes to
Groia v. Law Society of Upper Canada
, 2018 SCC 27,
[2018] 1 S.C.R. 772,
at para. 95, where the
    majority concluded that it would unjustifiably tarnish a lawyers reputation to
    allow a law society to find a lawyer guilty of professional misconduct on the
    basis of incivility for something the lawyer, in the law societys opinion,
ought
    to have known or ought to have done
 (emphasis in original). The appellant
    focusses on this passage from
Groia

in advancing the argument
    that, where a lawyer is mistaken about his record-keeping obligations, he will
    not by necessary implication [be] in breach of his duty to cooperate where the
    alleged non-cooperation arises from honest confusion or miscommunication.

[55]

Groia

has no bearing on the issue in this case. As Sachs J. pointed out in
    her reasons for the Divisional Court,
Groia

grappled with the
    question of whether a lawyer could be found guilty of professional misconduct
    involving incivility, in the face of having made a genuine mistake about the
    law. The Supreme Court majority concluded in
Groia
, at para. 91, that
    inquiring into the legal merit of a lawyers position to conclude that his or
    her allegations lack a reasonable basis would discourage lawyers from raising
    well-founded allegations, impairing the lawyers duty of resolute advocacy and
    the clients right to make full answer and defence.

[56]

The duty to cooperate has nothing to do with
    these important overarching policy considerations. In the context of this case,
    there is nothing wrong with the idea that a licensee should not be able to rely
    upon the ignorance of their record-keeping obligations as a demonstration of a
    good faith explanation for failing to completely and promptly respond to the Law
    Societys requests. A licensees responsibilities in respect of record-keeping
    are clearly spelled out under By-Law 9. So too is the form in which records
    must be kept, including the need to ensure that a paper copy of the
[financial]
record may be produced promptly
    on the
[Law] Societys
request: By-Law 9, s. 21(2).

[57]

If a licensee could simply say to the regulator,
    I cannot produce the record promptly or completely because I did not know
    about my record-keeping obligations and made no reasonable effort to find them
    out, and this response could constitute a good faith explanation, it would
    undermine the very purpose of the duty to cooperate.
Quite simply,
ignorance
    of ones professional obligations cannot subsist as a demonstration of good
    faith; they do not go hand in hand.

[58]

In any event, I would pause here to make the
    observation that the Vice-Chair found as a fact that, at least when it came to
    the requested general receipts journal, the appellant confirmed in an interview
    with Law Society representatives on March 30, 2017, over five months after the
    general receipts journal was initially requested, what he must have known all
    along: that he had the records containing the most important information that
    is required by By-Law 9, s. 18(5). While the Vice-Chair later went on to say
    that there was no mystery about the requirements of the By
[-L]
aw, and [the appellant] knew or should
    have known of the contents of the By
[-L]
aw and his obligation to comply with it, I see nothing
    controversial in that statement. With the privilege of being admitted to a
    self-regulated profession comes the responsibility to know ones obligations.

[59]

Finally, the appellant argues that a failure to
    cooperate should not be made out on anything short of clear, convincing and cogent
    evidence of a significant departure from acceptable professional standards
and
a clear refusal to cooperate.

[60]

There is no debate in this case about whether
    evidence led in support of a finding of professional misconduct must be clear,
    convincing, and cogent in nature:
Re Bernstein and College of Physicians and
    Surgeons of Ontario

(1977),

76 D.L.R. (3d) 38 (Ont. Div.
    Ct.), at p. 76. Like all matters of proof, it must meet these criteria.

[61]

Nor does the Law Society dispute what was said
    by this court in
Barrington v. The Institute of Chartered Accountants of
    Ontario
, 2011 ONCA 409, 279 O.A.C. 148, at para. 122, leave to appeal
    refused,
[2011] S.C.C.A. No. 367,
that any departure from the standards of the profession must be so
    significant that it constitutes professional misconduct. The key is that failure
    to cooperate with the Law Society, once found, in fact constitutes a significant
    departure from acceptable professional standards. As the Hearing Division
    observed in
Ghobrial
, at para. 10, failing to cooperate is properly
    stigmatized as professional misconduct if the licensee failed to act
    responsibly and in good faith to promptly provide the necessary information.
    In other words, the label of professional misconduct is only given to a failure
    to cooperate  the failure to act responsibly and in good faith in responding
    to Law Society requests  because this type of conduct constitutes a
    significant departure from the acceptable standards of the profession.

[62]

This leaves to be addressed the appellants suggestion
    that professional misconduct arising from a breach of r. 7.1-1 of the
Rules
    of Professional Conduct
should only be found upon a clear refusal by the
    licensee to cooperate. In support of this proposition, the appellant relies
    upon
Reid v. College of Chiropractors of Ontario
, 2016 ONSC 1041 (Div.
    Ct.), at paras. 80-81. Dr. Michael Reid was a chiropractor who was found guilty
    of a number of counts of professional misconduct, including failing to
    cooperate with the College of Chiropractors of Ontarios investigation. Among
    other issues, the Divisional Court addressed whether the undisputed facts
    supported the finding of a failure to cooperate.

[63]

While it is true that the Divisional Court in
Reid
,
    at para. 81, referred to the need for a clear refusal to cooperate with the
    investigation in order to make out a failure to cooperate with disciplinary
    investigations, I agree with the Law Societys characterization of this term as
    being nothing more than descriptive in nature. In the context of that case,
    while Dr. Reid initially refused to cooperate with the investigator, he did so
    on the incorrect legal advice of a paralegal. Once Dr. Reid was informed by the
    investigator of his requirement to cooperate, he became cooperative. It is
    against that factual backdrop that the Divisional Court concluded that Dr. Reid
    had not failed to cooperate. In my view, the appellants position can find no
    support in
Reid
.

[64]

In any event, to inject a clear refusal to
    cooperate test into the framework of r. 7.1-1 of the
Rules of Professional
    Conduct
 one that demands proof of an outright refusal to cooperate 
    would far overshoot the mark. While there must be clear, convincing, and cogent
    evidence of professional misconduct, to suggest that a finding of professional
    misconduct under r. 7.1-1 of the
Rules of Professional Conduct
must
    turn on a clear refusal to cooperate  something akin to the licensee
    outright refusing to cooperate with the Law Society  would set the standard
    too high, rendering it susceptible to a purely subjective test. Any such approach
    would stand in opposition to the laudable goals underlying the self-regulated
    legal profession.

[65]

It is critical to keep the nature of this
    self-regulated environment in mind when considering the legal issue in this
    case. The core of the work of self-regulated law societies is the need to
    protect the interests of the public:
L
aw Society of New Brunswick v.
    Ryan
,

2003 SCC 20,
[2003] 1 S.C.R. 247,
at para. 36;
Pearlman v. Manitoba Law Society Judicial
    Committee
, [1991] 2 S.C.R. 869, at pp. 886-88. As David A.A. Stager and Harry
    W. Arthurs wrote in
Lawyers in Canada

(Toronto: University of
    Toronto Press, 1990), at p. 31, as cited in
Ryan
,

at para. 36,
    The privilege of self-government is granted to professional organizations only
    in exchange for, and to assist in, protecting the public interest with respect
    to the services concerned.

[66]

The reputation of the legal profession rests on
    the publics confidence that self-regulation is taken seriously by the legal profession.
    This can only occur where the legal profession has at hand effective and
    efficient tools by which to achieve accountability among its members. This is fundamental
    to the health and vibrancy of the legal profession.

[67]

Returning to the duty to cooperate, r. 7.1-1 of
    the
Rules of Professional Conduct
is designed to ensure that there is
    a complete response and no inordinate delays in investigations by the
    self-regulated authority. It requires nothing more than prompt and complete
    responses when requested, which are essential to moving investigations forward.
    Delays in doing so can only serve to shake the publics confidence in the Law
    Societys self-regulatory authority: see
Law Society of Upper Canada v. Baker
,
    2006 ONLSHP 21, at para. 6;
Law Society of Upper Canada v. Wysocky
, 2009
    ONLSHP 77, at paras. 89-90. As the Law Society points out in their factum, the
    reputation of the ability of the profession to self-regulate would quickly be
    diminished if the obligation to cooperate could be subverted by a cat and
    mouse game (as described by the Hearing Panel), that fell short of a clear
    refusal.

[68]

It is against all of that backdrop that the test
    for failing to cooperate, finding its foundation in
Ghobrial

and
Boissonneault
, must be considered. In my view, the test appropriately has
    both subjective and objective components. It is for the Law Society to prove the
    failure to cooperate  the absence of good faith dealings with the Law Society
     on a balance of probabilities. In coming to that determination, the Hearing
    Division will consider all of the evidence and circumstances informing whether the
    licensee was or was not, in relation to the Law Society in its supervisory and
    investigatory functions, honest, open, and helpful.

(4)

The Test was Properly Applied

[69]

There is nothing in the Vice-Chairs reasons
    that suggests he applied a strictly objective test to his findings or turned
    the failure to cooperate into an absolute liability offence. To the contrary,
    he adhered to the correct legal test as described above, took into
    consideration all of the circumstances, including the back-and-forth
    communications between the appellants counsel and the Law Society, and simply
    concluded that the appellant had failed to cooperate.

[70]

At its core, the appellant is really objecting to
    the Vice-Chairs conclusions, including the conclusion that he did not act in
    good faith. The appellant says that, through his counsel, he worked diligently
    to respond to the Law Societys requests. For instance, he emphasizes that
    there is an almost uninterrupted exchange of communications in the record, as
    he repeatedly sought clarification from the Law Society and remained engaged
    with the Law Society throughout the investigation. He underscores the efforts
    he made to comply, including explaining why certain documents were taking
    longer to produce, asking for clarifications, and offering to provide the Law
    Society with the authorization to pay to obtain the cancelled cheques.

[71]

The appellant points out that each request made
    by the Law Society was responded to promptly. While the Law Society may not
    have liked all of the responses, they were genuine responses that, at their
    highest, may show some confusion on the part of both of the Law Society and the
    appellant, but not a failure to cooperate. The appellant argues that this is
    best demonstrated through the fact that, once the confusion was cleared, all the
    requested documents were produced. This is said to underscore how everything
    the appellant did was in good faith.

[72]

Respectfully, the difficulty with this argument
    is that the Vice-Chair, without legal error, came to a very different
    conclusion. He reviewed the law correctly. He made extensive findings of fact. Ultimately,
    he came to the conclusion that, based upon those facts, the appellant had not
    acted in good faith when responding to the Law Society. This is perhaps most
    clearly articulated by the Vice-Chair when he concluded, in relation to the general
    receipts journal and the general disbursements journal, that the appellant had
    engaged in a cat and mouse game that has no place in the relationship
    between licensee and regulator. This type of game stands as the antithesis of
    good faith dealings or, put another way, of honest, open, and helpful dealings.

[73]

These were conclusions available to the Vice-Chair
    on the record before him. It cannot be said that a palpable and overriding
    error was made.

E.

DISPOSITION

[74]

I would therefore dismiss the appeal.

[75]

On consent of the parties, I would order the
    appellant to pay costs in the amount of $15,000 to the Law Society, inclusive
    of disbursements and applicable taxes, which includes costs for the appeal and
    the motion for leave to appeal.

Released: April 22, 2021 JMF

Fairburn A.C.J.O.

I agree. S.E. Pepall J.A.

I agree. L.B. Roberts J.A.


