The court rejected 20 licensing candidates’ bid to reopen the appeal
The Ontario Court of Appeal will not reassess its finding that the Law Society of Ontario acted fairly when it responded to cheating on 2021 licensing exams by voiding some prospective lawyers’ registration in its licensing process.
The OCA ruled on the matter in April, but 20 licensing candidates moved to reopen the appeal, arguing that the appellate court should have used a reasonableness standard to assess the LSO’s conduct following the exam breach.
However, in a June 27th decision, the OCA rejected the candidates’ argument. The court said the candidates failed to clear the “high hurdle” litigants face when they ask a court to withdraw a prior decision and rehear an appeal on the merits.
The OCA said that the “normal and proper recourse” for the candidates is to appeal to the Supreme Court of Canada. The court noted that one of the candidates has already taken this route.
The exam breach took place in 2021. After administering barrister and solicitor licensing examinations in November of that year, the LSO learned that the exams had been compromised.
Following a review and investigation, the LSO concluded that 10 percent of the exams had anomalous results, suggesting that the candidates who wrote them had advanced access to an answer key. All but one of the exams had been written by candidates affiliated with a specific tutoring agency.
In August 2022, the LSO told the candidates there was evidence to support the conclusion that they had engaged in “prohibited actions” and breached licensing rules. The LSO voided the applicants’ November 2021 exam results and their registration in the LSO licensing process.
Twenty of those candidates filed applications for judicial review. After hearing the applications together, a lower court concluded that the LSO’s exam decision was reasonable. However, it found that the regulator’s decision to void the candidates’ registration breached the applicants’ right to procedural fairness since it made the decision without holding hearings or findings that the applicants had intentionally engaged in misconduct.
The LSO appealed this second finding. In its April decision, the OCA agreed with the regulator that it did not engage in procedural unfairness.
In response to the candidates’ bid to reopen the appeal, the OCA noted that the court “will reopen an appeal prior to the entering of the order only in ‘rare circumstances’ and where it is in the interests of justice to withdraw the reasons of the court and re-hear the appeal on the merits.” The court said the candidates’ bid failed to meet either of these criteria.
The OCA addressed the candidates’ argument that they were denied judicial review because the lower court and the OCA failed to use a reasonableness standard to assess the LSO’s choice to void the candidates’ registration. The OCA noted that it addressed the candidates’ reasonableness argument in its April decision.
The appellate court conceded that the LSO voided the candidates’ registration even though it lacked any findings about their intent or knowledge of the exam breach.
However, the court said that its April decision addressed this issue. The LSO department reviewing the exams was only tasked with finding whether the candidates had engaged in “prohibited actions” as defined by licensing bylaws and rules. The department determined that the candidates had engaged in such actions, which include obtaining or using licensing examination questions or answers before, during, or after a licensing exam.
Under licensing bylaws, the LSO had to void the candidates’ exams and subsequently void their registration in the licensing process.
In a statement on Wednesday, LSO spokesperson Amy Lewis told Law Times that the OCA’s April decision “affirmed the fairness of the law society’s administrative response to this incident, including that the law society appropriately followed its governing by-laws when it required most impacted candidates to restart the licensing process after sitting out of the process for up to a year.”
Lewis said that as of May, about 20 percent of the 127 candidates whose registrations were voided have since been licensed, after they took steps to demonstrate their good character.
Another 60 percent of the candidates are in the licensing process. Some of these candidates currently have applications before the Law Society Tribunal.
The remaining 20 percent of candidates are no longer in the licensing process, for reasons that might include failing to reenter, reentering and then withdrawing from the process, or reentering the process and having their applications designated as abandoned.
Counsel for the candidates did not immediately respond to requests for comment.
