Licence refused 10 years after it was issued | Sara Blake

By Sara Blake

Law360 Canada (September 28, 2023, 9:54 AM EDT) --
Sara Blake
Sara Blake
Ersio Amendola had been a licensed paralegal for 10 years when the Law Society of Ontario (LSO) learned of a misrepresentation in his application for the licence. It held a hearing into whether to grant the licence (which he had had for 10 years) and issued a decision refusing to grant it. This decision was upheld by the Appeal Panel and, on judicial review, by the Divisional Court in Amendola v. Law Society of Ontario 2023 ONSC 4123.

When applying for the paralegal licence, Amendola answered “no” to the question: “Have you ever been sanctioned or had a penalty imposed upon you by a court, an administrative tribunal or a regulatory body?”

His “no” was a misrepresentation. As a licensed realtor, he had been disciplined by the Real Estate Council of Ontario for signing a document containing a misrepresentation. He was ordered to pay an administrative penalty. That decision was upheld by the Divisional Court on judicial review: Amendola v. Real Estate Council of Ontario [2009] O.J. No. 1987.

Had Amendola answered “yes” to the question, he would likely have been denied a paralegal licence for lack of good character. However, the question of his good character did not have to be considered because his misrepresentation made him ineligible for the licence.

Neither the Law Society Act, nor its bylaws, explicitly address the process for dealing with a misrepresentation in an application for a licence that is not discovered until after the licence has been issued. The law society commenced the process for refusal of an application for a licence and the Appeal Panel, by a majority of three, ruled it was the correct process. The dissenting two panel members ruled that the process to revoke an issued licence should have been followed. The Divisional Court upheld the majority’s ruling as reasonable.

A law society bylaw deems an application for a licence that contains a misrepresentation “not to meet and not to have met the licensing requirements”. In effect, Amendola is deemed never to have been a licensed paralegal, even though, on paper, he had a licence for 10 years.

What about the applicant’s conduct as a paralegal during the 10 years that he acted pursuant to a licence? The majority ruled that his post-licence conduct was irrelevant given that he was ineligible for the licence. They ruled that “it would be absurd if a licence applicant could remain licensed to provide legal services or practice law, despite having made deliberate false representations on his licensing application, as long as their misrepresentation is not found out in time.” They cited the law society’s legislative mandate to ensure that the people of Ontario are served by members of the legal professions who meet high standards of learning, competence and professional conduct.

The minority of the Appeal Panel ruled that once the licence was issued, Amendola was no longer an “applicant.” He was a licensee. There was no longer an application to be refused or dismissed. The process to revoke a licence should have been followed.

The Divisional Court ruled that the words in the bylaw — “and not to have met the requirements” — were determinative. These words refer to the circumstances before the licence was issued but allow an inquiry into whether to refuse a licence after it has been issued. Any other interpretation would make these words redundant. A decision made before the licence is issued could refuse the application on the ground that it is deemed “not to meet the requirements.” A decision made after the licence is issued could refuse the application on the ground that it is deemed “not to have met the requirements”. In both cases, the result would be consistent with the statutory purpose of protecting the public and ensuring high ethical standards in the professions. The court ruled that, whether an applicant’s false statement is discovered before or after licensing, its bearing on the applicant’s integrity and character and the risk to the public, is the same.

The applicant retains a statutory right to make a fresh application for a licence on proving he is now of good character. In that application, he may rely on his conduct during 10 years of practice as a paralegal. However, his failure to correct his misrepresentation until it was discovered by the law society will be a factor against him.

The decisions do not address the ramifications for Amendola’s clients who believed they were represented by a licensed paralegal and paid him for paralegal services. Nor whether he was insured even though he likely paid the annual liability insurance premiums required of every licensed paralegal. In my view, revocation of the licence would be cleaner in that it would not raise doubts about the validity of the work he did for clients or his insurance coverage.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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