Reduction in Sanction on the Basis of Delay is Not Automatic
Perspectives for the Professions
The Law Society of Upper Canada v Abbott, 2017 ONCA 525, holds that delay in initiating investigatory and disciplinary proceedings does not necessarily justify a reduction in sanction.
Mr. Abbott was a real estate lawyer. In 2007, a lender client, suspicious of mortgage fraud in one of Mr. Abbott’s transactions, made a complaint about Mr. Abbott to the Law Society of Upper Canada. The investigation into the complaint was completed in 2012, more than five and a half years after the complaint was made. The hearing took place in 2014, approximately seven and a half years after the complaint was made.
The hearing panel determined that Mr. Abbott engaged in mortgage fraud and ordered that his license to practice law be revoked. The appeal panel subsequently upheld the hearing panel’s finding of professional misconduct. However, pointing to the Law Society’s “inordinate and unacceptable delay” in investigating and prosecuting Mr. Abbott, the appeal panel reduced the sanction to a two year suspension.
The Ontario Court of Appeal reinstated the original penalty of licence revocation. The Court acknowledged that inordinate delay may lead to a reduction in sanction in some cases. However, the Court highlighted that such a reduction in sanction is by no means automatic and instead depends on “contextual factors”. The Court went on to point out that, in cases of mortgage fraud, the presumptive penalty is licence revocation. The Court held that this was a significant contextual factor. In light of the presumption, a reduction in penalty would only be appropriate if there was egregious personal prejudice to the member. The Court signalled that such cases would be exceedingly rare.
Comment: This case confirms that delay in investigatory or disciplinary proceedings does not necessarily entitle a member to a reduction in sanction. Context is important. Where the member’s misconduct is serious and the presumptive penalty is revocation of their license or exclusion from the profession, it is unlikely that delay will entitle the member to a reduction in sanction. On the flip side, where the member’s misconduct is less serious, and the presumptive penalty is something less than a revocation of their license, delay may be a significant factor in assessing the appropriate sanctions.
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