⚖️ Answer keys

To: Hearsay Readers

Just because you’re called to the bar doesn’t mean you can’t be free on the land — even practicing lawyers are making pseudo-law arguments now. Any predictions on whether this story will come up again at a future discipline hearing?

Have a great weekend.

— Dylan Gibbs

TODAY’S DOCKET

  • Ethics: Partial victory for alleged bar exam cheaters

  • Round up: Judge scolded for trying to hide improper comments, ransomware class action, First Nations carbon tax exemption, and Trump’s rough week

LICENSING

Alleged cheaters prevail over LSO

Students writing an exam

The licensing candidates who probably had the answers to Ontario’s 2021 bar exam secured a partial victory this week. The Divisional Court said the Law Society of Ontario jumped the gun when it treated the candidates as proven cheaters instead of alleged cheaters without holding a hearing.

But the victory is pretty hollow — the Court wasn’t willing to let the alleged cheaters just get on with lawyering. They still need to rewrite the exam. And the LSO still has every right to stop them from entering the profession if it holds proper hearings.

What happened: NCA Exam Guru, a tutoring agency, allegedly distributed answer keys for the November 2021 bar exam to its clients. Ten percent of test takers had anomalous results and most of them were connected to NCA Exam Guru.

Based only on written submissions, the LSO said candidates with anomalous results needed to retake the exam. It was worse for those with a connection to NCA Exam Guru — the LSO cancelled their licensing registrations and prohibited them from reapplying for one year. For good measure, the LSO notified every other Canadian law society about the decision.

Judicial review: The LSO argued it didn’t need to hold a hearing because it didn’t make a finding about professional misconduct and it didn’t conclude the candidates lacked good character. But the Court disagreed with that characterization — no matter how you label it, the LSO’s decision was equivalent to a finding of deliberate misconduct and led to punitive sanctions. The LSO can’t make those calls without a hearing.

Next steps: The alleged cheaters still need to retake the test if they want to be admitted. And the LSO can still refer them to good character hearings. The candidates argued it’s too late for that, but the Court disagreed. The Court did say that any good character hearing needs to happen ASAP, though — any more waiting and it’ll start to smell like an abuse of process.

One of the alleged cheaters is probably really hoping the LSO just lets it go. Lying about NCA Exam Guru and accusing the LSO of breaking the law probably won’t go over well at a character hearing:

Ms. Mirza initially denied any use of [NCA Exam Guru]. When the LSO wrote her advising that it had evidence to the contrary, her response was to claim that under the Charter, she had the right to join any group or social media. Ms. Mirza then accused the LSO of committing the offence of “spying” by asking her about [NCA Exam Guru]. The LSO could certainly draw an adverse inference from such a response.

HEARSAY ROUNDUP

Canadiana

😳 The Nova Scotia Court of Appeal was pretty unimpressed with a judge who made comments suggesting a reasonable apprehension of bias and then tried to cover it up. Before closing submissions in a criminal trial, the judge called the accused a sexual deviant and said he had zero doubt about one of the charges. Then he backtracked, said his comments were off-record, and told the court reporter to exclude the discussion from the transcript. When the Crown decided the comments needed to be included in the record and sent to the Court of Appeal, the judge wrote to the parties and accused the Crown of acting improperly. The Court of Appeal called his behaviour “astonishing”.

🏥 Five Ontario hospitals that were targeted in a ransomware attack are now being sued by patients affected by the data breach. The proposed class action is seeking damages of $480 million.

⛽️ Ontario’s First Nations want a carbon tax exemption. In a judicial review application, several First Nations communities argue the federal government is administering the carbon pricing regime in a discriminatory way. They also argue the added cost of fuel is hampering their protected rights to hunt, fish, and harvest.

Beyond the border

🦅 Donald Trump took back-to-back blows heading into the weekend. Yesterday, an appellate court reinstated the gag order that prohibits Trump and his lawyers from making public statements about court staff. Today, a different appellate court held Trump was acting in his personal capacity when he encouraged people to storm the Capitol in 2021. That means he’s not immune from civil lawsuits over what happened.

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