Nov 2, 2020

Relying on Out-of-Province Disciplinary Findings

Kivisto v. Law Society of Ontario, 2020 ONSC 5790 (CanLII)

Where a practitioner is disciplined in another jurisdiction, a Canadian regulator typically also wants to act. If the conduct relates to incompetence or unprofessionalism, the Canadian regulator will want to protect the public here. Many regulatory statutes enable the regulator to rely on out-of-province findings without having to re-prove the case. Even if there is not an enabling provision in the governing statute, regulators can often rely on the out-of-province findings as evidence of the underlying misconduct.

However, the practitioner will often want to introduce additional evidence or arguments as to why the out-of-province finding should not be relied upon. In Kivisto v. Law Society of Ontario, 2020 ONSC 5790, http://canlii.ca/t/j9t5h the Divisional Court gave guidance as to when a discipline panel can refuse to permit a practitioner to challenge the out-of-province decision. Relying on the Supreme Court of Canada decision in Beals v. Saldanha, 2003 SCC 72, http://canlii.ca/t/1g7bw, the Court said that the discipline tribunal can recognize the foreign finding where the other jurisdiction had a real and substantial connection to the matters. In this case the events occurred in Florida, where the practitioner had been disciplined, so that part of the test was met. In addition, no fundamental unfairness in the procedure followed in the out-of-province hearing.

The issue then turned to whether the Florida discipline findings were determinative. The Court indicated that collateral attacks on findings in other jurisdictions should not be permitted unless:

  • the original hearing was tainted by fraud or dishonesty,
  • there is material fresh evidence that was not available at the time of the original proceeding, or
  • “Fairness dictates that the original results should not be binding in the new context”, such as where the conduct in issue in the original proceeding would not be professional misconduct here.

In this case, those rare exceptions were not established. The practitioner had been disciplined in Florida for taking financial advantage of vulnerable clients. He then attempted to contest the validity of the findings made at the original hearing, which the Court found to be an improper collateral attack on the original proceedings.

This decision should reassure regulators that they can usually rely on out-of-province disciplinary findings without having the re-hear the allegations on the merits.