The court said letting the woman file a cross appeal will reopen previously-decided issues
The Ontario Court of Appeal has dismissed another appeal bid related to a 2021 licensing exam breach, telling a licensing candidate that granting her an extension to file a cross appeal in the matter would result in “a piecemeal approach” to challenging the Law Society of Ontario’s decision to void her barrister exam.
In its decision in Afolabi v. Law Society of Ontario this week, the OCA said it believed the candidate's delay in filing the cross appeal may have stemmed from her not knowing that she could file a cross appeal during a prescribed appeal period. The candidate had argued she wasn’t aware of her rights due to poor legal advice.
However, the court also noted that she did not try to seek a deadline extension until after the OCA had issued two key decisions in the matter. Neither of those appellate decisions interfered with a lower court finding that the LSO acted reasonably when it voided the breached exams, including the candidate’s.
By waiting for those two decisions to come out first, the candidate has created “the impression that this motion represents an attempt to achieve indirectly what was denied directly,” the OCA said. “That is, reopening the question of the fairness of the LSO’s actions in relation to the moving party and other affected students.”
The development is the latest update in a debacle that began in November 2021, when the LSO unknowingly administered a set of compromised barrister and solicitor licensing exams. After conducting a review and investigation, the LSO concluded that 10 percent of the exams had results that suggested the candidates who wrote them had advanced access to an answer key.
All but one of these exams had been written by candidates affiliated with a particular tutoring agency. The LSO voided the applicants’ November 2021 exam results and their registration in the LSO licensing process.
The candidate whose cross appeal bid the OCA dismissed this week, however, only had her exam voided. Her registration in the licensing program remained intact.
After she and other candidates with voided exams challenged the LSO’s decisions in court, the court concluded that the LSO’s exam decision was unreasonable. However, it found that the regulator’s decision to void the candidates’ registration violated their right to procedural fairness.
The LSO appealed this second finding, and the OCA sided with the regulator in April, finding that it did not engage in procedural unfairness when it voided the candidates’ licensing registration after the exam breach. In June, the OCA told the candidates it would not reassess its April decision.
According to the OCA’s decision this week, the candidate wanted to file a cross appeal against the lower court ruling that the LSO had the right to void the breached exams. She argued that the LSO’s move was procedurally unfair, partly because the LSO failed to disclose a statistical report it had used to justify voiding her exam. The candidate said she should have had an opportunity to counter the report.
In addition to stating that she did not file her cross appeal sooner due to poor legal advice, the candidate argued she could not rewrite the barrister exam due to significant health issues, so a cross appeal would be the only route that would allow her to become a lawyer.
The OCA said in deciding whether the candidate can cross appeal, it must take into account the candidate’s health issues including the reasons why she delayed filing her cross appeal. The OCA found, however, that the most substantial barrier for the candidate was the fact that the appellate court could not agree with her that the LSO should have disclosed more information before voiding her exam.
In order to come to that conclusion, the OCA would have to conclude that a “higher degree of fairness” applied to the voiding of exams than to the voiding of registrations.
“That scenario simply is not plausible,” the OCA wrote. “This is especially because the consequences to a candidate of voiding their entire licensing process are more severe than voiding their examination results, which is merely a component of licensing.”
The OCA also sided with the LSO’s argument that allowing the cross appeal would give the candidate the opportunity to reopen issues that had already been decided by the court this year.
The LSO declined to comment on the decision. Counsel for the candidate did not provide a comment.
