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Toronto immigration lawyer’s motion to halt misconduct proceedings dismissed

by HR Law Canada

The Ontario Law Society Tribunal Hearing Division has dismissed a motion filed by a Toronto immigration lawyer — R.O. — who sought to halt disciplinary proceedings against him on grounds of abuse of process.

The Tribunal found no evidence of procedural unfairness in the Law Society’s investigation into allegations of professional misconduct against him.

Allegations of misconduct

R.O., called to the bar in Nigeria in 1989 and Ontario in 2004, faces serious allegations, including sexual harassment of a former client, providing substandard legal services, and failing to conduct himself with honour and integrity.

The former client, identified as SS, initially contacted R.O. in April 2017 for assistance in becoming a permanent resident of Canada. The case evolved into a refugee claim, appeal, and judicial review, during which SS alleges misconduct by R.O.

Complaint and investigation

SS’s complaint, filed with the Law Society on Nov. 8, 2021, sparked an investigation led by Nina Iwanowich. The investigation, which concluded with a final report on Jan. 23, 2023, found SS to be a vulnerable client who had fled an abusive relationship in Tanzania.

The report highlighted several key issues, including R.O.’s alleged instruction for SS to misrepresent herself as a lesbian to strengthen her refugee claim, which SS refused to do.

Further allegations from SS included inappropriate comments and physical advances by R.O. during their meetings. Additionally, SS claimed that R.O. demanded substantial payments for legal services without advising her of the option to apply for legal aid for her appeal and judicial review processes.

Motion for stay

R.O.’s motion, filed on Jan. 4, 2024, argued that the Law Society investigator abused her powers, acted in bad faith, and denied him procedural fairness.

He contended that crucial information was withheld from him, such as details from Legal Aid Ontario regarding the issuance of SS’s legal aid certificate and SS’s retention of another lawyer who later assisted her pro bono.

The motion also claimed that the allegations, particularly of sexual harassment, were vague and lacked specific dates, making it difficult for R.O. to mount a defence. He insisted that the investigation’s process was flawed and biased against him.

Tribunal’s findings

In its detailed analysis, the Tribunal found no merit in R.O.’s claims of abuse of process. The panel emphasized the high threshold required to establish abuse of process, referencing the Supreme Court of Canada’s decision in Blencoe v. British Columbia (Human Rights Commission), which defines abuse of process as a proceeding so unfair that it is contrary to the interests of justice.

The Tribunal noted that procedural fairness rights during an investigation are limited and do not require the same level of disclosure as during a hearing. It found that R.O. was adequately informed of the allegations against him and had opportunities to respond. The Tribunal dismissed the notion that the investigator’s decision not to seek R.O.’s consent for Legal Aid records was procedurally unfair, stating that R.O. could obtain any necessary information from Legal Aid for his defence.

On the matter of the sexual harassment allegations, the Tribunal acknowledged the difficulty in addressing vague claims but reiterated that such issues are best resolved through a full hearing where credibility can be assessed through cross-examination.

Conclusion and next steps

The Tribunal concluded that there was no evidence of unfairness or oppression in the investigation and that the appropriate course of action was a full hearing on the merits of the allegations. The motion for a stay was dismissed, and any costs related to the motion will be determined by the panel hearing the merits of the proceeding.

For more information, see Law Society of Ontario v. Odeleye, 2024 ONLSTH 71 (CanLII).

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