[36] Bill 53 Original (PDF)
B053_E
Bill 53 1998
An Act to amend the Law Society Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. (1) Section 1 of the Law Society Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 1, is further amended by adding the following definition:
"
Appeal Panel" means the Law Society Appeal Panel established under Part II. ("Comité d'appel")
(2) The definition of "bencher" in section 1 of the Act is repealed and the following substituted:
"
bencher" means a bencher of the Society, other than an honorary bencher. ("conseiller")
(3) Section 1 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 1, is further amended by adding the following definitions:
"
by-laws" means the by-laws made under this Act; ("règlements administratifs")
"
Chief Executive Officer" means the Chief Executive Officer of the Society; ("chef de la direction")
"
document" includes a paper, book, record, account, sound recording, videotape, film, photograph, chart, graph, map, plan, survey and information recorded or stored by computer or by means of any other device; ("document")
"
elected bencher" means a person who is elected as a bencher under subsection 15 (1) or holds the office of elected bencher under subsection 15 (3); ("conseiller élu")
"
Hearing Panel" means the Law Society Hearing Panel established under Part II; ("Comité d'audition")
"
lay bencher" means a person appointed as a bencher by the Lieutenant Governor in Council under section 23; ("conseiller non juriste")
"
life bencher" means a person who is a bencher under paragraph 3 of subsection 12 (1). ("conseiller à vie")
"
physician" means a member of the College of Physicians and Surgeons of Ontario or a person who is authorized to practise medicine in another province or territory of Canada; ("médecin")
"
psychologist" means a member of the College of Psychologists of Ontario or a person who is authorized to practise psychology in another province or territory of Canada. ("psychologue")
(4) The definition of "rules" in section 1 of the Act is repealed and the following substituted:
"
rules of practice and procedure" means the rules of practice and procedure made under this Act. ("règles de pratique et de procédure")
(5) The definition of "Under Treasurer" in section 1 of the Act is repealed.
(6) Section 1 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 1, is further amended by adding the following subsections:
Documents in possession or control
(2) For the purposes of this Act, a document is in the possession or control of a person if the person is entitled to obtain the original document or a copy of it.
Hearings
(3) A hearing is not required before making any decision under this Act, the regulations, the by-laws or the rules of practice and procedure unless the Act, regulations, by-laws or rules of practice and procedure specifically require a hearing.
2. Section 3 of the Act is amended by striking out "rules" in the fifth line and substituting "by-laws".
3. Sections 7 and 8 of the Act are repealed and the following substituted:
Treasurer
7. The Treasurer is the president and head of the Society.
Chief Executive Officer
8. (1) The Chief Executive Officer shall, under the direction of Convocation, manage the affairs and functions of the Society.
Secretary
(2) The Secretary shall carry out his or her duties under this Act, the regulations, by-laws and rules of practice and procedure, and such other duties as the Secretary may be instructed to undertake by the Chief Executive Officer.
4. Section 9 of the Act is amended by striking out "or a rule" in the eighth line and substituting "a by-law or a rule of practice and procedure".
5. Section 11 of the Act is amended by striking out "rules" at the end and substituting "by-laws".
6. Section 12 of the Act is repealed and the following substituted:
Benchers by virtue of their office
12. (1) The following, if and while they are members, are benchers by virtue of their office:
1. The Minister of Justice and Attorney General for Canada.
2. The Solicitor General for Canada.
3. Every person who has held the office of elected bencher for at least 16 years.
Same: attorneys general
(2) The following, whether or not they are members, are benchers by virtue of their office:
1. The Attorney General for Ontario.
2. Every person who has held the office of Attorney General for Ontario.
Same
(3) Subsection (2) does not apply to a person whose membership is in abeyance under section 31.
Rights and privileges
(4) Benchers by virtue of their office under subsection (1) or (2) have the rights and privileges prescribed by the by-laws but, except as provided in subsection (5), may not vote in Convocation or in committees.
Voting
(5) The following voting rights apply:
1. The Attorney General for Ontario may vote in Convocation and in committees.
2. Benchers by virtue of their office under paragraph 3 of subsection (1) or paragraph 2 of subsection (2) may vote in committees.
Elected bencher's choice
(6) An elected bencher who becomes qualified as a bencher under subsection (1) or (2) shall choose whether to continue in office as an elected bencher or to cease to hold office as an elected bencher and serve as a bencher under subsection (1) or (2).
Same
(7) If a bencher chooses under subsection (6) to continue in office as an elected bencher, he or she is eligible to be re-elected in any subsequent election of benchers without prejudice to his or her right to become a bencher under subsection (1) or (2) at any time so long as he or she is still an elected bencher.
7. (1) Subsection 13 (1) of the Act is amended by striking out "document, paper, record or thing" in the seventh and eighth lines and substituting "document or thing".
(2) Subsection 13 (2) of the Act is amended by,
(a) striking out "document, paper, record or thing" in the second line and substituting "document or thing"\; and
(b) striking out "disciplinary" in the last line.
(3) Subsection 13 (3) of the Act is amended by,
(a) striking out "disciplinary" in the third line"\; and
(b) striking out "in Convocation or in a committee of benchers" in the fourth and fifth lines and substituting "under this Act".
8. Section 14 of the Act is repealed and the following substituted:
Former Treasurers
14. Every member who previously held the office of Treasurer is a bencher by virtue of his or her office.
9. Section 15 of the Act, as amended by the Statutes of Ontario, 1997, chapter 26, Schedule, is repealed and the following substituted:
Election of benchers
15. (1) Forty benchers shall be elected in accordance with the by-laws.
Regions
(2) The benchers elected under subsection (1) shall be elected for regions prescribed by the by-laws.
Vacancies
(3) Any vacancies in the offices of elected benchers may be filled in accordance with the by-laws.
10. Section 16 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 2, is repealed.
11. Sections 17, 18, 19, 20 and 21 of the Act are repealed.
12. Section 23 of the Act, as amended by the Statutes of Ontario, 1997, chapter 26, Schedule, is repealed and the following substituted:
Lay benchers
23. (1) The Lieutenant Governor in Council may appoint eight persons who are not members as benchers.
Term of office
(2) Every appointment under subsection (1) expires immediately before the first regular Convocation following the first election of benchers that takes place after the effective date of the appointment.
Reappointment
(3) A person appointed under this section is eligible for reappointment.
Deemed reappointment
(4) A person whose appointment expires under subsection (2) shall be deemed to have been reappointed until his or her successor takes office.
13. Section 25 of the Act is repealed and the following substituted:
Election of Treasurer
25. (1) The benchers shall annually, at such time as the benchers may fix, elect an elected bencher as Treasurer.
Bencher by virtue of office
(2) The Treasurer is a bencher by virtue of that office and ceases to hold office as an elected bencher.
Re-election
(3) The Treasurer is eligible for re-election as Treasurer, despite having ceased to hold office as an elected bencher, but, after a new election of benchers takes place under subsection 15 (1), the Treasurer may be re-elected only if he or she is an elected bencher.
14. Subsections 27 (4), (5) and (6) of the Act are repealed and the following substituted:
Hearing
(4) An application for admission to the Society may be refused only by the Hearing Panel after holding a hearing.
Parties
(5) The parties to a hearing under subsection (4) are the applicant, the Society and any other person added as a party by the Hearing Panel.
Subsequent applications
(6) If an application for admission to the Society is refused, another application may be made at any time based on fresh evidence or a material change in circumstances.
Definition
(7) In this section, "
admission to the Society" means,
(a) admission as a student member, or
(b) admission as a member other than as a temporary member.
15. The Act is amended by adding the following section:
Notice of admission, etc.
27.1 The Secretary shall give the local registrar of the Ontario Court (General Division) at Toronto notice of every admission to membership and of every revocation, suspension, resignation, readmission or other change in the status of a member or student member.
16. (1) Section 28 of the Act is amended by striking out the portion before clause (a) and substituting the following:
28. Subject to sections 30, 31 and 32 and to any order made under Part II,
. . . . .
(2) Clause 28 (a) of the Act is amended by striking out "rules" at the end and substituting "by-laws".
(3) Clause 28 (b) of the Act is amended by striking out "rules" at the end and substituting "by-laws".
(4) Clause 28 (c) of the Act is amended by striking out "or" at the end of subclause (ii), adding "or" at the end of subclause (iii) and adding the following subclause:
(iv) who, as deans or members of the faculty of a law school in Ontario, are called to the bar and admitted and enrolled as solicitors without examination in accordance with the by-laws,
. . . . .
(5) Clause 28 (d) of the Act is amended by striking out the portion after subclause (ii) and substituting the following:
are student members, with the rights and privileges prescribed by the by-laws, until they cease to be students-at-law in the Bar Admission Course.
17. (1) Subsection 28.1 (1) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 41, section 3, is amended by striking out "by Convocation" in the fourth line.
(2) Section 28.1 of the Act, as enacted by the Statutes of Ontario, 1991, chapter 41, section 3, is amended by adding the following subsections:
Hearing
(2.1) A request for admission of a temporary member of the Society may be refused only by the Hearing Panel after holding a hearing.
Parties
(2.2) The parties to a hearing under subsection (2.1) are the Attorney General, the person for whom temporary membership is requested, the Society and any other person added as a party by the Hearing Panel.
(3) Subsection 28.1 (3) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 41, section 3, is amended by,
(a) striking out "oath" in the third line and substituting "oaths"\;
(b) striking out "affirmation" in the third and fourth lines and substituting "affirmations"\; and
(c) striking out "rules" in the fifth line and substituting "by-laws".
18. Section 30 of the Act is repealed and the following substituted:
Resignation
30. (1) A member or student member may apply in writing to resign his or her membership in the Society.
Acceptance of resignation
(2) A resignation is effective when the application to resign is accepted in accordance with the by-laws.
Application for readmission following resignation
(3) If a person resigned his or her membership in the Society as a member or student member, the Hearing Panel may, on the application of the person, make an order readmitting the person as a member or student member.
19. (1) Clause 31 (1) (a) of the Act, as re-enacted by the Statutes of Ontario, 1996, chapter 25, section 7, is repealed and the following substituted:
(a) as a full-time judge of any federal, provincial or territorial court, as a full-time master of the Ontario Court (General Division), as a full-time case management master, or as a full-time prothonotary of the Federal Court of Canada; or
. . . . .
(2) Subsections 31 (3), (4) and (5) of the Act are repealed and the following substituted:
Exception
(3) The Hearing Panel may refuse to restore the membership of a person whose membership is in abeyance if, after holding a hearing, the Panel finds that the person was removed or resigned from an office described in subsection (1) because of,
(a) conduct that was incompatible with the due execution of the office;
(b) failure to perform the duties of the office; or
(c) conduct that, if done by a member, would be professional misconduct or conduct unbecoming a barrister and solicitor.
Parties
(4) The parties to a hearing under subsection (3) are the person whose membership is in abeyance, the Society and any other person added as a party by the Hearing Panel.
20. Subsection 32 (3) of the Act is repealed and the following substituted:
Readmission
(3) Any person who ceases to be a member under subsection (1) or (2) may, on becoming a Canadian citizen or a permanent resident of Canada, make application for readmission as a member.
Hearing
(4) An application for readmission may be refused only by the Hearing Panel after holding a hearing.
Parties
(5) The parties to a hearing under subsection (4) are the applicant, the Society and any other person added as a party by the Hearing Panel.
21. Sections 33 and 34, section 35, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, and sections 36 to 49 of the Act are repealed and the following substituted:
PART II
Conduct
Prohibited conduct: members
33. (1) A member shall not engage in professional misconduct or conduct unbecoming a barrister or solicitor.
Prohibited conduct: student members
(2) A student member shall not engage in conduct unbecoming a student member.
Conduct application
34. (1) With the authorization of the Proceedings Authorization Committee, the Society may apply to the Hearing Panel for a determination of whether a member or student member has contravened section 33.
Parties
(2) The parties to the application are the Society, the member or student member who is the subject of the application, and any other person added as a party by the Hearing Panel.
Restriction
(3) If a complaint is referred to the Complaints Resolution Commissioner in accordance with the by-laws, no application relating to the subject matter of the complaint may be made under this section while the Commissioner is dealing with the complaint.
Conduct orders
35. (1) Subject to the rules of practice and procedure, if an application is made under section 34 and the Hearing Panel determines that the member or student member has contravened section 33, the Panel shall make one or more of the following orders:
1. An order revoking the member's or student member's membership in the Society and, in the case of a member, disbarring the member as a barrister and striking his or her name off the roll of solicitors.
2. An order permitting the member or student member to resign his or her membership in the Society.
3. An order suspending the rights and privileges of the member or student member,
i. for a definite period,
ii. until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary, or
iii. for a definite period and thereafter until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary.
4. An order imposing a fine on the member or student member of not more than $10,000, payable to the Society.
5. An order that the member or student member obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or participate in other programs to improve his or her health.
6. An order that the member or student member participate in specified programs of legal education or professional training or other programs to improve his or her professional competence.
7. In the case of a member, an order that the member restrict his or her practice to specified areas of law.
8. In the case of a member, an order that the member practise only,
i. as an employee of a member or other person approved by the Secretary,
ii. in partnership with and under the supervision of a member approved by the Secretary, or
iii. under the supervision of a member approved by the Secretary.
9. In the case of a member, an order that the member co-operate in a review of the member's practice under section 42 and implement the recommendations made by the Secretary.
10. In the case of a member, an order that the member maintain a specified type of trust account.
11. In the case of a member, an order that the member accept specified co-signing controls on the operation of his or her trust accounts.
12. In the case of a member, an order that the member not maintain any trust account in connection with his or her practice without leave of the chair or a vice-chair of the standing committee of Convocation responsible for discipline matters.
13. In the case of a member, an order requiring the member to refund to a client all or a portion of the fees and disbursements paid to the member by the client or, in the case of a student member, an order requiring the student member to pay to a person an amount equal to all or a portion of the fees and disbursements paid by the person in respect of work done by the student member.
14. In the case of a member, an order requiring the member to pay to the Society, for the Lawyers Fund for Client Compensation, such amount as the Hearing Panel may fix that does not exceed the total amount of grants made from the Fund as a result of dishonesty on the part of the member.
15. In the case of a member, an order that the member give notice of any order made under this section to such of the following persons as the order may specify:
i. The member's partners or employers.
ii. Other members working for the same firm or employer as the member.
iii. Clients affected by the conduct giving rise to the order.
16. In the case of a student member, an order that the student member give notice of any order made under this section to his or her articling principal.
17. In the case of a student member, an order revoking any credit in the Bar Admission Course to which the student member would otherwise be entitled.
18. An order that the member or student member report on his or her compliance with any order made under this section and authorize others involved with his or her treatment or supervision to report thereon.
19. An order that the member or student member be reprimanded.
20. An order that the member or student member be admonished.
21. Any other order that the Hearing Panel considers appropriate.
Same
(2) The failure of subsection (1) to specifically mention an order that is provided for elsewhere in this Act does not prevent an order of that kind from being made under paragraph 21 of subsection (1).
Test results
(3) If the Hearing Panel makes an order under paragraph 18 of subsection (1), specific results of tests performed in the course of treatment or counselling of the member or student member shall be reported pursuant to the order only to a physician or psychologist selected by the Secretary.
Report to Secretary
(4) If test results reported to a physician or psychologist under subsection (3) relate to an order made under paragraph 5 of subsection (1), the Secretary may require the physician or psychologist to promptly report to the Secretary his or her opinion on the member's or student member's compliance with the order, but the report shall not disclose the specific test results.
Invitation to attend
36. (1) If an application has been made under section 34, the Hearing Panel may invite the member or student member in respect of whom the application was made to attend before the Panel for the purpose of receiving advice from the Panel concerning his or her conduct.
Dismissal of application
(2) The Hearing Panel shall dismiss the application if the member or student member attends before the Panel in accordance with the invitation.
Capacity
Interpretation - "incapacitated": members
37. (1) A member is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting obligations as a member.
Interpretation - "incapacitated": student members
(2) A student member is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of serving under articles or of participating in the Bar Admission Course.
Determinations under other Acts
(3) Subject to subsections (4) and (5), the Hearing Panel may determine that a person is incapacitated for the purposes of this Act if the person has been found under any other Act to be incapacitated within the meaning of that Act.
Conditions controlled by treatment or device: members
(4) The Hearing Panel shall not determine that a member is incapacitated for the purposes of this Act if, through compliance with a continuing course of treatment or the continuing use of an assistive device, the member is capable of meeting his or her obligations as a member.
Same: student members
(5) The Hearing Panel shall not determine that a student member is incapacitated for the purposes of this Act if, through compliance with a continuing course of treatment or the continuing use of an assistive device, the student member is capable of serving under articles and of participating in the Bar Admission Course.
Same
(6) Despite subsections (4) and (5), the Hearing Panel may determine that a person who is the subject of an application under section 38 is incapacitated for the purposes of this Act if,
(a) the person suffers from a condition that would render the person incapacitated were it not for compliance with a continuing course of treatment or the continuing use of an assistive device; and
(b) the person has not complied with the continuing course of treatment or used the assistive device on one or more occasions in the year preceding the commencement of the application.
Capacity application
38. (1) With the authorization of the Proceedings Authorization Committee, the Society may apply to the Hearing Panel for a determination of whether a member or student member is or has been incapacitated.
Parties
(2) The parties to the application are the Society, the member or student member who is the subject of the application, and any other person added as a party by the Hearing Panel.
Medical or psychological examinations
39. (1) If an application is made under section 38, the Hearing Panel may, on motion by a party to the application or on its own motion, make an order requiring the member or student member who is the subject of the application to be examined by one or more physicians or psychologists.
Panel to specify examiners
(2) The examining physicians or psychologists shall be specified by the Hearing Panel after giving the parties to the proceeding an opportunity to make recommendations.
Purpose of examination
(3) The purpose of the examination is,
(a) to assess whether the member or student member is or has been incapacitated;
(b) to assess the extent of any incapacity and the prognosis for recovery; and
(c) to assist in the determination of any other medical or psychological issue in the application.
Questions and answers
(4) The member or student member shall answer the questions of the examining physicians or psychologists that are relevant to the examination.
Same
(4.1) The answers given under subsection (4) are admissible in evidence in the application, including any appeal, and in any proceeding in court arising from the application, but are not admissible in any other proceeding.
Failure to comply
(5) If the member or student member fails to comply with an order under this section, the Hearing Panel may make an order suspending his or her rights and privileges until he or she complies.
Appeal
(6) A party to the proceeding may appeal an order under this section or a refusal to make an order under this section to the Appeal Panel.
Grounds: parties other than Society
(7) A party other than the Society may appeal under subsection (6) on any grounds.
Grounds: Society
(8) The Society may appeal under subsection (6) only on a question that is not a question of fact alone.
Time for appeal
(9) An appeal under subsection (6) shall be commenced within the time prescribed by the rules of practice and procedure.
Capacity orders
40. (1) Subject to the rules of practice and procedure, if an application is made under section 38 and the Hearing Panel determines that the member or student member is or has been incapacitated, the Panel may make one or more of the following orders:
1. An order suspending the rights and privileges of the member or student member,
i. for a definite period,
ii. until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary, or
iii. for a definite period and thereafter until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary.
2. An order that the member or student member obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or participate in other programs to improve his or her health.
3. In the case of a member, an order that the member restrict his or her practice to specified areas of law.
4. In the case of a member, an order that the member practise only,
i. as an employee of a member or other person approved by the Secretary,
ii. in partnership with and under the supervision of a member approved by the Secretary, or
iii. under the supervision of a member approved by the Secretary.
5. An order that the member or student member report on his or her compliance with any order made under this section and authorize others involved with his or her treatment or supervision to report thereon.
6. Any other order that the Hearing Panel considers appropriate.
Same
(2) The failure of subsection (1) to specifically mention an order that is provided for elsewhere in this Act does not prevent an order of that kind from being made under paragraph 6 of subsection (1).
Test results
(3) If the Hearing Panel makes an order under paragraph 5 of subsection (1), specific results of tests performed in the course of treatment or counselling of the member or student member shall be reported pursuant to the order only to a physician or psychologist selected by the Secretary.
Report to Secretary
(4) If test results reported to a physician or psychologist under subsection (3) relate to an order made under paragraph 2 of subsection (1), the Secretary may require the physician or psychologist to promptly report to the Secretary his or her opinion on the member's or student member's compliance with the order, but the report shall not disclose the specific test results.
Professional Competence
Interpretation - standards of professional competence
41. A member fails to meet standards of professional competence for the purposes of this Act if,
(a) there are deficiencies in,
(i) the member's knowledge, skill or judgment,
(ii) the member's attention to the interests of clients,
(iii) the records, systems or procedures of the member's practice, or
(iv) other aspects of the member's practice; and
(b) the deficiencies give rise to a reasonable apprehension that the quality of service to clients may be adversely affected.
Practice reviews
42. (1) The Society may conduct a review of a member's practice in accordance with the by-laws for the purpose of determining if the member is meeting standards of professional competence.
Restriction
(2) A review may be conducted under this section only if,
(a) the review is required under section 49.4;
(b) the member is required by an order under section 35 to co-operate in a review under this section; or
(c) the member consents.
Recommendations
(3) On completion of the review, the Secretary may make recommendations to the member.
Proposal for order
(4) The Secretary may include the recommendations in a proposal for an order.
Contents of proposal
(5) A proposal for an order may include orders like those mentioned in section 44 and any other order that the Secretary considers appropriate.
Acceptance by member
(6) If the Secretary makes a proposal for an order to the member and the member accepts the proposal within the time prescribed by the by-laws, the Secretary shall notify the chair or a vice-chair of the standing committee of Convocation responsible for professional competence and the chair or vice-chair shall appoint an elected bencher to review the proposal.
Approval by bencher
(7) The bencher who reviews the proposal may make an order giving effect to the proposal if he or she is of the opinion that it is appropriate to do so.
Modifications to proposal
(8) The bencher may include modifications to the proposal in an order under subsection (7) if the member and the Secretary consent in writing to the modifications.
Application of subss. (4) to (8)
(9) Subsections (4) to (8) do not apply if the member is required by an order under section 35 to co-operate in a review of the member's practice under this section and implement the recommendations made by the Secretary.
Professional competence application
43. (1) With the authorization of the Proceedings Authorization Committee, the Society may apply to the Hearing Panel for a determination of whether a member is failing or has failed to meet standards of professional competence.
Parties
(2) The parties to the application are the Society, the member who is the subject of the application and any other person added as a party by the Hearing Panel.
Professional competence orders
44. (1) Subject to the rules of practice and procedure, if an application is made under section 43 and the Hearing Panel determines that the member is failing or has failed to meet standards of professional competence, the Panel shall make one or more of the following orders:
1. An order suspending the rights and privileges of the member,
i. for a definite period,
ii. until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary, or
iii. for a definite period and thereafter until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary.
2. An order that the member institute new records, systems or procedures in his or her practice.
3. An order that the member obtain professional advice with respect to the management of his or her practice.
4. An order that the member retain the services of a person qualified to assist in the administration of his or her practice.
5. An order that the member obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or participate in other programs to improve his or her health.
6. An order that the member participate in specified programs of legal education or professional training or other programs to improve his or her professional competence.
7. An order that the member restrict his or her practice to specified areas of law.
8. An order that the member practise only,
i. as an employee of a member or other person approved by the Secretary,
ii. in partnership with and under the supervision of a member approved by the Secretary, or
iii. under the supervision of a member approved by the Secretary.
9. An order that the member report on his or her compliance with any order made under this section and authorize others involved with his or her treatment or supervision to report thereon.
10. Any other order that the Hearing Panel considers appropriate.
Same
(2) The failure of subsection (1) to specifically mention an order that is provided for elsewhere in this Act does not prevent an order of that kind from being made under paragraph 10 of subsection (1).
Test results
(3) If the Hearing Panel makes an order under paragraph 9 of subsection (1), specific results of tests performed in the course of treatment or counselling of the member shall be reported pursuant to the order only to a physician or psychologist selected by the Secretary.
Report to Secretary
(4) If test results reported to a physician or psychologist under subsection (3) relate to an order made under paragraph 5 of subsection (1), the Secretary may require the physician or psychologist to promptly report to the Secretary his or her opinion on the member's compliance with the order, but the report shall not disclose the specific test results.
Failure to Comply with Order
Suspension for failure to comply with order
45. (1) On application by the Society, the Hearing Panel may make an order suspending the rights and privileges of a member or student member if the Panel determines that the member or student member has failed to comply with an order under this Part.
Parties
(2) The parties to the application are the Society, the member or student member who is the subject of the application, and any other person added as a party by the Hearing Panel.
Nature of suspension
(3) An order under this section may suspend the rights and privileges of the member or student member,
(a) for a definite period;
(b) until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary; or
(c) for a definite period and thereafter until terms and conditions specified by the Hearing Panel are met to the satisfaction of the Secretary.
Summary Orders
Summary suspension for non-payment
46. (1) An elected bencher appointed for the purpose by Convocation may make an order suspending a member's rights and privileges if, for the period prescribed by the by-laws, the member has been in default for failure to pay a fee or levy payable to the Society.
Length of suspension
(2) A suspension under this section remains in effect until the member pays the amount owing in accordance with the by-laws to the satisfaction of the Secretary.
Discharge from bankruptcy
(3) A suspension under this section is not terminated by the member's discharge from bankruptcy, but the member may apply to the Hearing Panel under subsection 49.42 (3).
Summary suspension for failure to complete or file
47. (1) An elected bencher appointed for the purpose by Convocation may make an order suspending a member's rights and privileges if, for the period prescribed by the by-laws,
(a) the member has been in default for failure to complete or file with the Society any certificate, report or other document that the member is required to file under the by-laws; or
(b) the member has been in default for failure to complete or file with the Society, or with an insurer through which indemnity for professional liability is provided under section 61, any certificate, report or other document that the member is required to file under a policy for indemnity for professional liability.
Length of suspension
(2) A suspension under this section remains in effect until the member completes and files the required document in accordance with the by-laws to the satisfaction of the Secretary.
Summary revocation
48. An elected bencher appointed for the purpose by Convocation may make an order revoking a member's membership in the Society, disbarring the member as a barrister and striking his or her name off the roll of solicitors if an order under section 46 or clause 47 (1) (a) is still in effect more than 12 months after it was made.
Summary suspension relating to continuing legal education
49. (1) An elected bencher appointed for the purpose by Convocation may make an order suspending a member's rights and privileges if the member has failed to comply with the requirements of the by-laws with respect to continuing legal education.
Length of suspension
(2) A suspension under this section remains in effect until the member complies with the requirements of the by-laws with respect to continuing legal education to the satisfaction of the Secretary.
Failure to make use of legal skills
49.1 (1) An elected bencher appointed for the purpose by Convocation may make an order prohibiting a member from engaging in the private practice of law if it has been determined in accordance with the by-laws that the member has not made substantial use of legal skills on a regular basis for such continuous period of time as is specified by the by-laws.
Restriction
(2) An order shall not be made under subsection (1) more than 12 months after the end of the continuous period of time during which the member did not make substantial use of legal skills on a regular basis.
Termination of order
(3) The Secretary may certify that a member who is the subject of an order under subsection (1) has met the requalification requirements specified by the by-laws, and the order thereupon ceases to have effect, subject to such terms and conditions authorized by the by-laws as may be imposed by the Secretary.
Application to Hearing Panel
(4) If the Secretary refuses to certify that a member has met the requalification requirements or imposes terms and conditions under subsection (3), the member may apply to the Hearing Panel for a determination of whether the requalification requirements have been met or of whether the terms and conditions are appropriate.
Parties
(5) The parties to an application under subsection (4) are the applicant, the Society and any other person added as a party by the Hearing Panel.
Powers
(6) The Hearing Panel shall,
(a) if it determines that the requalification requirements have been met, order that the order made under subsection (1) cease to have effect, subject to such terms and conditions authorized by the by-laws as may be imposed by the Panel; or
(b) if it determines that the requalification requirements have not been met, order that the order made under subsection (1) continue in effect.
Audits, Investigations, Etc.
Audit of financial records
49.2 (1) The Secretary may require an audit to be conducted of the financial records of a member or group of members for the purpose of determining whether they comply with the requirements of the by-laws.
Powers
(2) A person conducting an audit under this section may,
(a) enter the business premises of the member or group of members between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the member or by any member in the group of members;
(b) require the production of and examine the financial records maintained in connection with the practice of the member or group of members and, for the purpose of understanding or substantiating those records, require the production of and examine any other documents in the possession or control of the member or group of members, including client files; and
(c) require the member or members, and people who work with the member or members, to provide information to explain the financial records and other documents examined under clause (b) and the transactions recorded in those financial records and other documents.
Investigations: members' conduct
49.3 (1) Subject to section 49.5, the Secretary may require an investigation to be conducted into a member's conduct if the Secretary receives information suggesting that the member may have engaged in professional misconduct or conduct unbecoming a barrister or solicitor.
Powers
(1.1) A person conducting an investigation under subsection (1) may require the person under investigation and people who work with the person to provide information that relates to the matters under investigation and, if the Secretary is satisfied that there is a reasonable suspicion that the person under investigation may have engaged in professional misconduct or conduct unbecoming a barrister or solicitor, the person conducting the investigation may,
(a) enter the business premises of the person under investigation between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the person under investigation; and
(b) require the production of and examine any documents that relate to the matters under investigation, including client files.
Investigations: student members' conduct
(2) Subject to section 49.5, the Secretary may require an investigation to be conducted into a student member's conduct if the Secretary receives information suggesting that the student member may have engaged in conduct unbecoming a student member.
Powers
(2.1) A person conducting an investigation under subsection (2) may require the person under investigation and people who work with the person to provide information that relates to the matters under investigation and, if the Secretary is satisfied that there is a reasonable suspicion that the person under investigation may have engaged in conduct unbecoming a student member, the person conducting the investigation may,
(a) enter the business premises of the person under investigation between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the person under investigation; and
(b) require the production of and examine any documents that relate to the matters under investigation, including client files.
Investigations: capacity
(3) Subject to section 49.5, the Secretary shall require an investigation to be conducted into a member's or student member's capacity if the Secretary is satisfied that there are reasonable grounds for believing that the member or student member may be or may have been incapacitated.
Powers
(4) A person conducting an investigation under subsection (3) may,
(a) enter the business premises of the person under investigation between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the person under investigation;
(b) require the production of and examine any documents that relate to the matters under investigation, including client files; and
(c) require the person under investigation and people who work with the person to provide information that relates to the matters under investigation.
Mandatory reviews of professional competence
49.4 (1) Subject to section 49.6, the chair or a vice-chair of the standing committee of Convocation responsible for professional competence shall direct that a review of a member's practice be conducted under section 42 if the circumstances prescribed by the by-laws exist.
Powers
(2) A person conducting a review under this section may,
(a) enter the business premises of the member between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the member;
(b) require the production of and examine documents that relate to the matters under review, including client files, and examine systems and procedures of the member's practice; and
(c) require the member and people who work with the member to provide information that relates to the matters under review.
Investigations of benchers and Society employees
49.5 (1) A reference in section 49.3 to the Secretary shall be deemed, with respect to any matter that concerns the conduct or capacity of a bencher or employee of the Society, to be a reference to the Treasurer.
Outside investigator
(2) The Treasurer shall appoint a person who is not a bencher or employee of the Society to conduct any investigation under section 49.3 that concerns the conduct or capacity of a bencher or employee of the Society.
Reviews of professional competence of benchers
49.6 (1) The Treasurer shall exercise the authority of the chair or a vice-chair of the standing committee of Convocation responsible for professional competence under section 49.4 in respect of any matter that concerns the professional competence of a bencher.
Outside review
(2) The Treasurer shall appoint a person who is not a bencher or employee of the Society to conduct any review under section 49.4 that concerns the professional competence of a bencher.
Access to information
49.7 A person appointed under section 49.5 or 49.6 to conduct an investigation or review that concerns a bencher or employee of the Society is entitled to have access to,
(a) all information in the records of the Society respecting the bencher or employee of the Society; and
(b) all other information within the knowledge of the Society with respect to the matter under investigation or review.
Disclosure despite privilege
49.8 (1) A person who is required under section 49.2, 49.3, 49.4 or 49.15 to provide information or to produce documents shall comply with the requirement even if the information or documents are privileged or confidential.
Admissibility despite privilege
(2) Despite clause 15 (2) (a) and section 32 of the Statutory Powers Procedure Act, information provided and documents produced under section 49.2, 49.3, 49.4 or 49.15 are admissible in a proceeding under this Act even if the information or documents are privileged or confidential.
Privilege preserved for other purposes
(3) Subsections (1) and (2) do not negate or constitute a waiver of any privilege and, even though information or documents that are privileged must be disclosed under subsection (1) and are admissible in a proceeding under subsection (2), the privilege continues for all other purposes.
Removal for copying
49.9 (1) A person entitled to examine documents under section 49.2, 49.3, 49.4 or 49.15 may, on giving a receipt,
(a) remove the documents for the purpose of copying them; and
(b) in the case of information recorded or stored by computer or by means of any other device, remove the computer or other device for the purpose of copying the information.
Return
(2) The person shall copy the documents or information with reasonable dispatch and shall return the documents, computer or other device promptly to the person from whom they were removed.
Order for search and seizure
49.10 (1) On application by the Society, the Ontario Court (General Division) may make an order under subsection (2) if the court is satisfied that there are reasonable grounds for believing,
(a) that circumstances exist that authorize or require an investigation to be conducted under section 49.3 or that require a review to be conducted under section 49.4;
(b) that there are documents or other things that relate to the matters under investigation or review in a building, dwelling or other premises specified in the application or in a vehicle or other place specified in the application; and
(c) that an order under subsection (2) is necessary because of urgency or because use of the authority in subsection 49.3 (1.1), (2.1) or (4) or 49.4 (2) is not possible, is not likely to be effective or has been ineffective.
Contents of order
(2) The order referred to in subsection (1) may authorize the person conducting the investigation or review, or any police officer or other person acting on the direction of the person conducting the investigation or review,
(a) to enter, by force if necessary, any building, dwelling or other premises specified in the order, or any vehicle or other place specified in the order;
(b) to search the building, dwelling, premises, vehicle or place;
(c) to open, by force if necessary, any safety deposit box or other receptacle; and
(d) to seize and remove any documents or other things that relate to the matters under investigation or review.
Terms and conditions
(3) An order under subsection (2) may include such terms and conditions as the court considers appropriate.
Assistance of police
(4) An order under subsection (2) may require a police officer to accompany the person conducting the investigation or review in the execution of the order.
Application without notice
(5) An application for an order under subsection (2) may be made without notice.
Removal of seized things
(6) A person who removes any thing pursuant to an order under this section shall,
(a) at the time of removal, give a receipt to the person from whom the thing is seized; and
(b) as soon as practicable, bring the thing before or report the removal to a judge of the Ontario Court (General Division).
Order for retention
(7) If the judge referred to in clause (6) (b) is satisfied that retention of the thing is necessary for the purpose of the investigation or review or for the purpose of a proceeding under this Part, he or she may order that the thing be retained until,
(a) such date as he or she may specify; or
(b) if a proceeding under this Part has been commenced, until the proceeding, including any appeals, has been completed.
Extension of time
(8) A judge of the Ontario Court (General Division) may, before the time for retaining a thing expires, extend the time until,
(a) such later date as he or she may specify; or
(b) if a proceeding under this Part has been commenced, until the proceeding, including any appeals, has been completed.
Return
(9) If retention of a thing is not authorized under subsection (7) or the time for retaining the thing expires, it shall be returned to the person from whom it was seized.
Seizure despite privilege
(10) An order under this section may authorize the seizure of a thing even if the thing is privileged or confidential.
Admissibility despite privilege
(11) Despite clause 15 (2) (a) and section 32 of the Statutory Powers Procedure Act, a thing seized under this section is admissible in a proceeding under this Act even if the thing is privileged or confidential.
Privilege preserved for other purposes
(12) Subsections (10) and (11) do not negate or constitute a waiver of any privilege and, even though a thing that is privileged may be seized under subsection (10) and is admissible in a proceeding under subsection (11), the privilege continues for all other purposes.
Identification
49.11 On request, a person conducting an audit, investigation, review, search or seizure under this Part shall produce identification and proof of his or her authority.
Confidentiality
49.12 (1) A bencher, officer, employee, agent or representative of the Society shall not disclose any information that comes to his or her knowledge as a result of an audit, investigation, review, search, seizure or proceeding under this Part.
Exceptions
(2) Subsection (1) does not prohibit,
(a) disclosure required in connection with the administration of this Act, the regulations, the by-laws or the rules of practice and procedure;
(b) disclosure required in connection with a proceeding under this Act;
(c) disclosure of information that is a matter of public record;
(d) disclosure by a person to his or her counsel; or
(e) disclosure with the written consent of all persons whose interests might reasonably be affected by the disclosure.
Testimony
(3) A person to whom subsection (1) applies shall not be required in any proceeding, except a proceeding under this Act, to give testimony or produce any document with respect to information that the person is prohibited from disclosing under subsection (1).
Disclosure to public authorities
49.13 (1) The Society may apply to the Ontario Court (General Division) for an order authorizing the disclosure to a public authority of any information that a bencher, officer, employee, agent or representative of the Society would otherwise be prohibited from disclosing under section 49.12.
Restrictions
(2) The court shall not make an order under this section if the information sought to be disclosed came to the knowledge of the Society as a result of,
(a) the making of an oral or written statement by a person in the course of the audit, investigation, review, search, seizure or proceeding that may tend to criminate the person or establish the person's liability to civil proceedings;
(b) the making of an oral or written statement disclosing matters that the court determines to be subject to solicitor-client privilege; or
(c) the examination of a document that the court determines to be subject to solicitor-client privilege.
Documents and other things
(3) An order under this section that authorizes the disclosure of information may also authorize the delivery of documents or other things that are in the Society's possession and that relate to the information.
No appeal
(4) An order of the court on an application under this section is not subject to appeal.
Complaints Resolution Commissioner
Appointment
49.14 (1) Convocation shall appoint a person as Complaints Resolution Commissioner in accordance with the regulations.
Restriction
(2) A bencher or a person who was a bencher at any time during the two years preceding the appointment shall not be appointed as Commissioner.
Term of office
(3) The Commissioner shall be appointed for a term not exceeding three years and is eligible for reappointment.
Removal from office
(4) The Commissioner may be removed from office during his or her term of office only by a resolution approved by at least two thirds of the benchers entitled to vote in Convocation.
Restriction on practice of law
(5) The Commissioner shall not engage in the practice of law during his or her term of office.
Functions of Commissioner
49.15 (1) The Commissioner shall,
(a) attempt to resolve complaints referred to the Commissioner for resolution under the by-laws; and
(b) review and, if the Commissioner considers appropriate, attempt to resolve complaints referred to the Commissioner for review under the by-laws.
Investigation by Commissioner
(2) If a complaint is referred to the Commissioner under the by-laws, the Commissioner has the same powers to investigate the complaint as a person conducting an investigation under section 49.3 would have with respect to the subject matter of the complaint, and, for that purpose, a reference in section 49.3 to the Secretary shall be deemed to be a reference to the Commissioner.
Access to information
(3) If a complaint is referred to the Commissioner under the by-laws, the Commissioner is entitled to have access to,
(a) all information in the records of the Society respecting a member or student member who is the subject of the complaint; and
(b) all other information within the knowledge of the Society with respect to the subject matter of the complaint.
Delegation
49.16 (1) The Commissioner may in writing delegate any of his or her powers or duties to members of his or her staff or to employees of the Society holding offices designated by the by-laws.
Terms and conditions
(2) A delegation under subsection (1) may contain such terms and conditions as the Commissioner considers appropriate.
Identification
49.17 On request, the Commissioner or any other person conducting an investigation under subsection 49.15 (2) shall produce identification and, in the case of a person to whom powers or duties have been delegated under section 49.16, proof of the delegation.
Confidentiality
49.18 (1) The Commissioner and each member of his or her staff shall not disclose,
(a) any information that comes to his or her knowledge as a result of an investigation under subsection 49.15 (2); or
(b) any information that comes to his or her knowledge under subsection 49.15 (3) that a bencher, officer, employee, agent or representative of the Society is prohibited from disclosing under section 49.12.
Exceptions
(2) Subsection (1) does not prohibit,
(a) disclosure required in connection with the administration of this Act, the regulations, the by-laws or the rules of practice and procedure;
(b) disclosure required in connection with a proceeding under this Act;
(c) disclosure of information that is a matter of public record;
(d) disclosure by a person to his or her counsel; or
(e) disclosure with the written consent of all persons whose interests might reasonably be affected by the disclosure.
Testimony
(3) A person to whom subsection (1) applies shall not be required in any proceeding, except a proceeding under this Act, to give testimony or produce any document with respect to information that the person is prohibited from disclosing under subsection (1).
Decisions final
49.19 A decision of the Commissioner is final and is not subject to appeal.
Proceedings Authorization Committee
Establishment
49.20 (1) Convocation shall establish a Proceedings Authorization Committee in accordance with the by-laws.
Functions
(2) The Committee shall review matters referred to it in accordance with the by-laws and shall take such action as it considers appropriate in accordance with the by-laws.
Decisions final
(3) A decision of the Committee is final and is not subject to appeal or review.
Hearing Panel
Establishment of Hearing Panel
49.21 (1) There is hereby established a panel of benchers to be known in English as the Law Society Hearing Panel and in French as Comité d'audition du Barreau.
Members of Panel
(2) Every bencher is a member of the Hearing Panel, except the following benchers:
1. Benchers who are members of the Proceedings Authorization Committee.
2. Benchers who hold office under paragraph 1 or 2 of subsection 12 (1) or under subsection 12 (2).
Chair
49.22 (1) Convocation shall appoint one of the members of the Hearing Panel who is an elected bencher as chair of the Hearing Panel.
Term of office
(2) Subject to subsection (3), the chair holds office for a term of one year and is eligible for reappointment.
Appointment at pleasure
(3) The chair holds office at the pleasure of Convocation.
Hearings
49.23 (1) An application to the Hearing Panel under this Part shall be determined after a hearing by the Panel.
Assignment of members
(2) The chair shall assign members of the Hearing Panel to hearings.
Composition at hearings
(3) A hearing before the Hearing Panel shall be heard and determined by such number of members of the Panel as is prescribed by the regulations.
French-speaking panelists
49.24 (1) A person who speaks French who is a party to a proceeding before the Hearing Panel may require that any hearing in the proceeding be heard by panelists who speak French.
Assignment of members as panelists
(2) If a hearing before the Hearing Panel is required to be heard by panelists who speak French and, in the opinion of the chair of the Panel, it is not practical to assign the required number of French-speaking benchers to the hearing, he or she may appoint one or more French-speaking members as temporary panelists for the purposes of that hearing, and the temporary panelists shall be deemed, for the purposes of subsection 49.23 (3), to be members of the Hearing Panel.
Powers
49.25 The Hearing Panel may determine any question of fact or law that arises in a proceeding before it.
Terms and conditions
49.26 An order of the Hearing Panel may include such terms and conditions as the Panel considers appropriate.
Interlocutory orders
49.27 The Hearing Panel may make an interlocutory order authorized by the rules of practice and procedure, but no interlocutory order may be made suspending the rights and privileges of a member or student member or restricting the manner in which a member may practise law unless the Panel is satisfied that the order is necessary for the protection of the public.
Costs
49.28 (1) Subject to the rules of practice and procedure, the costs of and incidental to a proceeding or a step in a proceeding before the Hearing Panel are in the discretion of the Panel, and the Panel may determine by whom and to what extent the costs shall be paid.
Society expenses
(2) Costs awarded to the Society under subsection (1) may include,
(a) expenses incurred by the Society in providing facilities or services for the purposes of the proceeding; and
(b) expenses incurred by the Society in any audit, investigation, review, search or seizure that is related to the proceeding.
Appeal Panel
Establishment of Appeal Panel
49.29 (1) There is hereby established a panel of benchers to be known in English as the Law Society Appeal Panel and in French as Comité d'appel du Barreau.
Composition
(2) The Appeal Panel shall consist of at least seven benchers appointed by Convocation.
Elected and lay benchers
(3) The Appeal Panel must include at least three elected benchers and at least one lay bencher.
Benchers by virtue of their office
(4) A bencher who holds office under paragraph 1 or 2 of subsection 12 (1) or under subsection 12 (2) may not be appointed to the Appeal Panel.
Life benchers
(5) The number of life benchers who are members of the Appeal Panel shall not exceed one third of the total number of members of the Appeal Panel.
Former Treasurers
(6) Not more than one bencher who holds office under section 14 may be a member of the Appeal Panel.
Term of office
(7) Subject to subsection (8), an appointment to the Appeal Panel shall be for such term, not exceeding two years, as Convocation may fix.
Appointment at pleasure
(8) A bencher appointed to the Appeal Panel holds office as a member of the Appeal Panel at the pleasure of Convocation.
Reappointment
(9) A bencher may not be reappointed to the Appeal Panel until after the next regular election of benchers.
Chair
49.30 (1) Convocation shall appoint one of the members of the Appeal Panel as chair of the Appeal Panel.
Term of office
(2) Subject to subsection (3), the chair holds office for a term of one year.
Appointment at pleasure
(3) The chair holds office at the pleasure of Convocation.
Reappointment
(4) A member of the Appeal Panel may not be reappointed as chair until after the next regular election of benchers.
Hearing of appeals
49.31 (1) An appeal to the Appeal Panel shall be determined after a hearing by the Appeal Panel.
Assignment of members
(2) The chair shall assign members of the Appeal Panel to hearings.
Composition at hearings
(3) An appeal to the Appeal Panel shall be heard and determined by at least five members of the Appeal Panel, of whom at least three must be elected benchers and at least one must be a lay bencher.
Temporary members
(4) If, in the opinion of the chair, it is not practical for five members of the Appeal Panel to be assigned to a hearing, he or she may appoint one or more benchers as temporary members of the Appeal Panel for the purposes of that hearing, and the temporary members shall be deemed, for the purposes of subsection (3), to be members of the Appeal Panel.
Restriction
(5) The chair may not appoint a bencher who holds office under paragraph 1 or 2 of subsection 12 (1) or under subsection 12 (2) as a temporary member of the Appeal Panel.
Appeals to Appeal Panel
49.32 (1) A party to a proceeding before the Hearing Panel may appeal a final decision or order of the Hearing Panel to the Appeal Panel.
Appeal from costs order
(2) A party to a proceeding before the Hearing Panel may appeal any order of the Hearing Panel under section 49.28 to the Appeal Panel, but the appeal may not be commenced until the Hearing Panel has given a final decision or order in the proceeding.
Appeal from summary orders of elected bencher
(3) A person who is subject to an order under section 46, 47, 48, 49 or 49.1 may appeal the order to the Appeal Panel.
Grounds: parties other than Society
49.33 (1) A party other than the Society may appeal under section 49.32 on any grounds.
Grounds: Society
(2) The Society may appeal under section 49.32 only on a question that is not a question of fact alone, unless the appeal is from an order under section 49.28, in which case the Society may appeal on any grounds.
Time for appeal
49.34 An appeal under section 49.32 shall be commenced within the time prescribed by the rules of practice and procedure.
Jurisdiction of Appeal Panel
49.35 (1) The Appeal Panel may determine any question of fact or law that arises in a proceeding before it.
Powers on appeal
(2) After holding a hearing on an appeal, the Appeal Panel may,
(a) make any order or decision that ought to or could have been made by the Hearing Panel or person appealed from;
(b) order a new hearing before the Hearing Panel, in the case of an appeal from a decision or order of the Hearing Panel; or
(c) dismiss the appeal.
Stay
49.36 (1) An appeal to the Appeal Panel does not stay the decision or order appealed from, unless, on motion, the Appeal Panel orders otherwise.
Terms and conditions
(2) In making an order staying a decision or order, the Appeal Panel may impose such terms and conditions as it considers appropriate on the rights and privileges of a person who is subject to the decision or order.
Application of other provisions
49.37 (1) Sections 49.24, 49.26, 49.27 and 49.28 apply, with necessary modifications, to the Appeal Panel.
French-speaking panelists
(2) In exercising authority under subsection 49.24 (2), the chair of the Appeal Panel may appoint one or more French-speaking benchers as temporary panelists or, if the chair is of the opinion that it is not practical to appoint benchers as temporary panelists, he or she may appoint one or more French-speaking members as temporary panelists.
Costs
(3) The authority of the Appeal Panel under section 49.28 includes authority to make orders with respect to steps in the proceeding that took place before the Hearing Panel.
Appeals to the Divisional Court
Appeals to Divisional Court
49.38 A party to a proceeding before the Appeal Panel may appeal to the Divisional Court from a final decision or order of the Appeal Panel if,
(a) the Appeal Panel's final decision or order was made on an appeal from a decision or order of the Hearing Panel under subsection 31 (3); or
(b) the proceeding was commenced under subsection 30 (3), section 34, section 38 or subsection 49.42 (4).
Grounds: parties other than Society
49.39 (1) A party other than the Society may appeal under section 49.38 on any grounds.
Grounds: Society
(2) The Society may appeal under section 49.38 only on a question that is not a question of fact alone, unless the appeal is from an order under section 49.28, in which case the Society may appeal on any grounds.
Payment for documents
49.40 The Society may require a party to an appeal under section 49.38 to pay the Society for providing the party with copies of the record or other documents for the purpose of the appeal.
Stay
49.41 (1) An appeal under section 49.38 does not stay the decision or order appealed from, unless, on motion, the Divisional Court orders otherwise.
Terms and conditions
(2) In making an order staying a decision or order, the court may impose such terms and conditions as it considers appropriate on the rights and privileges of a person who is subject to the decision or order.
Reinstatement and Readmission
Application for reinstatement
49.42 (1) If an order made under this Act suspended the rights and privileges of a member or student member or restricted the manner in which a member may practise law, the Hearing Panel may, on application by the member or student member, make an order discharging or varying the order on the basis of fresh evidence or a material change in circumstances.
Exceptions
(2) Subsection (1) does not apply to an interlocutory order or an order made under section 46, 47, 49 or 49.1.
Discharge from bankruptcy
(3) If an order made under section 46 suspended the rights and privileges of a member, the Hearing Panel may, on application by the member, make an order discharging or varying the order on the basis that the member has been discharged from bankruptcy.
Application for readmission
(4) If an order made under this Act revoked a person's membership in the Society as a member or student member, the Hearing Panel may, on the application of the person, make an order readmitting the person as a member or student member.
Parties
(5) The parties to an application under this section are the applicant, the Society and any other person added as a party by the Hearing Panel.
Terms and conditions
(6) Without limiting the generality of section 49.26, the terms and conditions that may be included in an order under this section include the following:
1. That a member or student member successfully pass examinations in specified subjects.
2. That a member not practise law in Ontario as a barrister or solicitor.
3. That the manner in which a member may practise law be restricted as specified by the Hearing Panel.
Dispute over satisfaction of terms and conditions
49.43 (1) A member or student member may apply to the Hearing Panel for a determination of whether terms and conditions specified in an order under this Part have been met if,
(a) the order suspended the rights and privileges of the member or student member until the terms and conditions were met to the satisfaction of the Secretary; and
(b) the Secretary is not satisfied that the terms and conditions have been met.
Powers
(2) The Hearing Panel shall,
(a) if it determines that the terms and conditions have been met, order that the order suspending the rights and privileges of the member or student member cease to have effect; or
(b) if it determines that the terms and conditions have not been met, order that the order suspending the rights and privileges of the member or student member continue in effect.
Parties
(3) The parties to an application under this section are the applicant, the Society and any other person added as a party by the Hearing Panel.
Freezing Orders and Trusteeship
Orders
Application
49.44 (1) Sections 49.45 to 49.52 apply to property that is or should be in the possession or control of a member in connection with,
(a) the practice of the member;
(b) the business or affairs of a client or former client of the member;
(c) an estate for which the member is or was executor, administrator or administrator with the will annexed;
(d) a trust of which the member is or was a trustee;
(e) a power of attorney under which the member is or was the attorney; or
(f) a guardianship under which the member is or was the guardian.
Same
(2) Sections 49.45 to 49.52 apply to property wherever it may be located.
Same
(3) An order under section 49.46 or 49.47 applies to property that is or should be in the possession or control of the member before or after the order is made.
Grounds for order
49.45 An order may be made under section 49.46 or 49.47 with respect to property that is or should be in the possession or control of a member only if,
(a) the member's membership in the Society has been revoked;
(b) the member's rights and privileges are under suspension or the manner in which the member may practise law has been restricted;
(c) the member has died or has disappeared;
(d) the member has neglected or abandoned his or her practice without making adequate provision for the protection of clients' interests;
(e) there are reasonable grounds for believing that the member has or may have dealt improperly with property that may be subject to an order under section 49.46 or 49.47 or with any other property; or
(f) there are reasonable grounds for believing that other circumstances exist in respect of the member or the member's practice that make an order under section 49.46 or 49.47 necessary for the protection of the public.
Freezing order
49.46 On the application of the Society, the Ontario Court (General Division) may order that all or part of the property that is or should be in the possession or control of a member shall not be paid out or dealt with by any person without leave of the court.
Trusteeship order
49.47 (1) On the application of the Society, the Ontario Court (General Division) may order that all or part of the property that is or should be in the possession or control of a member be held in trust by the Society or another person appointed by the court.
Purpose of order
(2) An order may be made under subsection (1) only for one or more of the following purposes, as specified in the order:
1. Preserving the property.
2. Distributing the property.
3. Preserving or carrying on the member's practice.
4. Winding up the member's practice.
Property subject to freezing order
(3) An order under subsection (1) may supersede an order under section 49.46.
Use of agent
(4) If the Society is appointed as trustee, it may appoint an agent to assist it or act on its behalf.
Search and seizure
(5) An order under subsection (1) may authorize the trustee or the sheriff, or any police officer or other person acting on the direction of the trustee or sheriff,
(a) to enter, by force if necessary, any building, dwelling or other premises, or any vehicle or other place, where there are reasonable grounds for believing that property that is or should be in the possession or control of the member may be found;
(b) to search the building, dwelling, premises, vehicle or place;
(c) to open, by force if necessary, any safety deposit box or other receptacle; and
(d) to seize, remove and deliver to the trustee any property that is or should be in the possession or control of the member.
Assistance of police
(6) An order under this section may require a police officer to accompany the trustee or sheriff in the execution of the order.
Compensation
(7) In an order under subsection (1) or on a subsequent application, the court may make such order as it considers appropriate for the compensation of the trustee and the reimbursement of the trustee's expenses out of the trust property, by the member, or otherwise as the court may specify.
Application for directions
49.48 The Society, at the time of making an application for an order under section 49.46 or 49.47, or the trustee appointed under subsection 49.47 (1), may apply to the Ontario Court (General Division) for the opinion, advice or direction of the court on any question affecting the property.
Application without notice
49.49 An application for an order under section 49.46 or 49.47 may be made without notice.
Requirement to account
49.50 An order under section 49.46 or 49.47 may require the member to account to the Society and to any other person named in the order for such property as the court may specify.
Variation or discharge
49.51 (1) The Society, the member or any person affected by an order under section 49.46 or 49.47 may apply to the Ontario Court (General Division) to vary or discharge the order.
Notice
(2) In addition to any person specified by the rules of court, notice of an application under this section shall be given to,
(a) the Society, if the Society is not the applicant; and
(b) the trustee, if an order has been made under section 49.47 and the applicant is not the trustee.
Former members
49.52 (1) Sections 49.44 to 49.51 also apply, with necessary modifications, in respect of former members.
Same
(2) Sections 49.44 to 49.51 apply to property that is or should be in the possession or control of a former member before or after the former member ceases to practise law.
Outside Counsel
Outside counsel
49.53 The Society shall be represented by a person who is not a bencher or employee of the Society in any proceeding under this Part before the Hearing Panel, the Appeal Panel or a court that concerns a bencher or employee of the Society.
22. The heading immediately preceding section 50 of the Act is struck out and the following substituted:
PART III
Prohibitions and Offences
23. Subsections 50 (2), (3), (4) and (5) of the Act are repealed.
24. The Act is amended by adding the following sections:
Offence: unauthorized practice
50.1 (1) Every person who contravenes section 50 is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
Offence: foreign legal advice
(2) Every person who gives legal advice respecting the law of a jurisdiction outside Canada in contravention of the by-laws is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
Compensation or restitution
(3) The court that convicts a person of an offence under this section may prescribe as a condition of a probation order that the person pay compensation or make restitution to any person who suffered a loss as a result of the offence.
Limitation
(4) A proceeding shall not be commenced in respect of an offence under this section after two years after the date on which the offence was, or is alleged to have been, committed.
Application to prohibit contravention
50.2 (1) The Society may apply to the Ontario Court (General Division) for an order prohibiting a person from contravening section 50 or from giving legal advice respecting the law of a jurisdiction outside Canada in contravention of the by-laws, if,
(a) the person has been convicted of an offence under section 50.1; or
(b) the person was a member of the Society and,
(i) the person's membership in the Society has been revoked, or
(ii) the person has been permitted to resign his or her membership in the Society.
Same
(2) An order may be made under clause (1) (b) if the court is satisfied that the person is contravening or has contravened section 50 or is giving or has given legal advice respecting the law of a jurisdiction outside Canada in contravention of the by-laws, whether or not the person has been prosecuted for or convicted of an offence under section 50.1.
Variation or discharge
(3) Any person may apply to the Ontario Court (General Division) for an order varying or discharging an order made under subsection (1).
25. (1) Subsection 51 (1) of the Act is repealed and the following substituted:
Lawyers Fund for Client Compensation
(1) The Compensation Fund is continued as the Lawyers Fund for Client Compensation.
Same
(1.1) The Society shall maintain the Fund and shall hold it in trust for the purposes of this section.
(2) Subsection 51 (2) of the Act is amended by striking out "Compensation Fund" in the first line and substituting "Fund".
(3) Subsection 51 (3) of the Act is amended by,
(a) striking out "rules" in the second line and substituting "by-laws"\;
(b) striking out "Compensation Fund" in the third line and substituting "Fund"\; and
(c) striking out "rules" at the end and substituting "by-laws".
(4) Subsection 51 (4) of the Act is amended by striking out "Compensation Fund" in the fifth line and substituting "Fund".
(5) Subsection 51 (5) of the Act is amended by striking out "Compensation Fund" in the second and third lines and substituting "Fund".
(6) Subsection 51 (6) of the Act is amended by striking out "Compensation Fund" in the second line and substituting "Fund".
(7) Section 51 of the Act is amended by adding the following subsections:
Summons
(11.1) For the purposes of this section, the Secretary may require any person, by summons,
(a) to give evidence on oath or affirmation at a hearing before Convocation, a committee or a referee; and
(b) to produce in evidence at a hearing before Convocation, a committee or a referee documents and things specified by the Secretary.
Application of Public Inquiries Act
(11.2) Section 4, subsection 7 (2) and sections 8 and 13 of the Public Inquiries Act apply, with necessary modifications, if a summons is issued under subsection (11.1).
(8) Subsection 51 (12) of the Act is amended by striking out "Compensation Fund" in the first and second lines and substituting "Fund".
26. (1) Subsection 55 (2) of the Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 49, is further amended by striking out "and" at the end of clause (b.1) and by adding the following clause:
(b.2) money paid to the Foundation under subsection 59.7 (3); and
. . . . .
(2) Clause 55 (2) (c) of the Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 49, is further amended by striking out "clauses (a), (b) and (b.1)" and substituting "clauses (a), (b), (b.1) and (b.2)".
(3) Subsection 55 (3) of the Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 49, is further amended by striking out "clauses (2) (a) and (b.1)" and substituting "clauses (2) (a), (b.1) and (b.2)".
27. The Act is amended by adding the following sections:
Unclaimed Trust Funds
Unclaimed trust funds
59.6 (1) A member who has held money in trust for or on account of a person for a period of at least two years may apply in accordance with the by-laws for permission to pay the money to the Society, if,
(a) the member has been unable to locate the person entitled to the money despite having made reasonable efforts throughout a period of at least two years; or
(b) the member is unable to determine who is entitled to the money.
Approval of application
(2) If the Secretary approves an application under subsection (1), the member may pay the money to the Society, subject to such terms and conditions as the Secretary may impose.
Financial records
(3) A member who pays money to the Society under subsection (2) shall provide the Society with copies of financial records relating to the money that are in the member's possession or control.
Member's liability
(4) Payment of money to the Society under subsection (2) extinguishes the member's liability as trustee or fiduciary with respect to the amount paid to the Society.
Society becomes trustee
59.7 (1) Money paid to the Society under section 59.6 shall be held in trust by the Society in perpetuity for the purpose of satisfying the claims of the persons who are entitled to the money.
One or more accounts
(2) Money held in trust under this section may be held in one or more accounts.
Trust income
(3) Subject to subsections (5) and (6), all income from the money held in trust under this section shall be paid to the Law Foundation.
Passing accounts
(4) The Society shall from time to time apply to the Ontario Court (General Division) under section 23 of the Trustee Act to pass the accounts of the trust established by this section and the court's order on each application shall specify a date before which the Society must make its next application to pass the accounts.
Trustee compensation
(5) Subject to subsection (6), the Society may take compensation from the trust property in accordance with orders made under subsection 23 (2) of the Trustee Act.
Same
(6) Compensation may be taken under subsection (5) only from the income of the trust.
First application
(7) The Society shall make its first application under subsection (4) not later than two years after this section comes into force.
Transfer to trust fund
59.8 (1) Despite section 59.6, the Society may transfer to the trust established by section 59.7 any money received in trust by the Society from a member after the day the Law Society Amendment Act, 1998 came into force, if,
(a) immediately before the money was received by the Society, the member was holding the money in trust for or on account of a person; and
(b) the Secretary is satisfied that the Society is unable to locate the person entitled to the money or to determine who is entitled to the money.
Exception
(2) Money held in trust by the Society pursuant to an order made under section 49.47 shall not be transferred under subsection (1) without the approval of the Ontario Court (General Division) provided for in the order made under section 49.47 or obtained on an application under section 49.48 or 49.51.
Money held before Law Society Amendment Act, 1998
(3) The Society may transfer to the trust established by section 59.7 any money held in trust by the Society immediately before the Law Society Amendment Act, 1998 came into force, if,
(a) the money was received by the Society from a member who held the money in trust for or on account of a person; and
(b) the Secretary is satisfied that the Society is unable to locate the person entitled to the money or to determine who is entitled to the money.
Transferred money to be held in trust
(4) Money transferred under this section to the trust established by section 59.7 shall be held in trust by the Society under section 59.7.
Member's liability
(5) The transfer of money under this section extinguishes the member's liability as trustee or fiduciary with respect to the amount transferred.
Notice
59.9 (1) The Secretary shall publish a notice annually in The Ontario Gazette listing the name and last known address of every person entitled to money that, during the previous year, was paid to the Society under section 59.6 or transferred under section 59.8 to the trust established by section 59.7.
Exception
(2) Subsection (1) does not require publication of any name or address of which the Society is not aware.
Other steps
(3) The Society shall take such other steps as it considers appropriate to locate the persons entitled to money held in trust by the Society under section 59.7.
Claims
59.10 (1) A person may make a claim in accordance with the by-laws for payment of money held in trust by the Society under section 59.7.
Payment of claims
(2) Subject to sections 59.12 and 59.13, the Society shall pay claims in accordance with the by-laws.
Application to court
59.11 Subject to sections 59.12 and 59.13, if a claim under section 59.10 is denied by the Society in whole or in part, the claimant may apply to the Ontario Court (General Division) for an order directing the Society to pay the claimant any money to which the claimant is entitled.
No entitlement to interest
59.12 A claimant to whom money is paid under section 59.10 or 59.11 is not entitled to any interest on the money that was held in trust by the Society.
Limit on payments
59.13 (1) The total of all payments made to claimants under sections 59.10 and 59.11 in respect of money paid to the Society by a particular member under section 59.6 shall not exceed the amount paid to the Society under section 59.6 by that member.
Money transferred to trust fund
(2) Subsection (1) also applies, with necessary modifications, in respect of money transferred under section 59.8 to the trust established by section 59.7.
Former members
59.14 Sections 59.6 to 59.13 also apply, with necessary modifications, in respect of money held in trust by former members.
28. The Act is amended by adding the following sections:
Limited Liability Partnerships
Limited liability partnerships
61.1 Subject to the by-laws, two or more members may form a limited liability partnership or continue a partnership as a limited liability partnership within the meaning of the Partnerships Act for the purpose of practising law.
Rules of Practice and Procedure
Rules
61.2 (1) Convocation may make rules of practice and procedure applicable to proceedings before the Hearing Panel and the Appeal Panel and to the making of orders under sections 46, 47, 48, 49 and 49.1.
Examples
(2) Without limiting the generality of subsection (1), Convocation may make rules of practice and procedure,
(a) governing the circumstances in which orders may be made under this Act;
(b) authorizing and governing interlocutory orders in a proceeding or intended proceeding, including interlocutory orders suspending the rights and privileges of a member or student member or restricting the manner in which a member may practise law;
(c) authorizing appeals from interlocutory orders;
(d) prescribing circumstances in which an interlocutory order suspending the rights and privileges of a member or student member may be deemed to be a final order if the member or student member does not appear at the hearing of an application;
(e) governing the admissibility of evidence in proceedings, including the admissibility in evidence of documents and other information disclosed under this Act or under the regulations, by-laws or rules;
(f) authorizing orders that a hearing or part of a hearing be held in the absence of the public and authorizing orders that specified information relating to a proceeding not be disclosed;
(g) authorizing the Hearing Panel, in applications under section 34, to deal, with the consent of the parties, with matters that would otherwise have to be the subject of an application under section 38, and to make any order referred to in section 40;
(h) governing the administration of reprimands and admonitions;
(i) governing the awarding of costs under section 49.28.
Rules under SPPA
(3) Rules made under this section shall be deemed, for the purposes of the Statutory Powers Procedure Act, to have been made under section 25.1 of that Act.
Conflict with SPPA
(4) In the event of a conflict between the rules made under this section and the Statutory Powers Procedure Act, the rules made under this section prevail, despite section 32 of that Act.
29. (1) Section 62 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 5, is further amended by adding the following subsection:
By-laws
(0.1) Convocation may make by-laws,
1. relating to the affairs of the Society;
2. providing procedures for the making, amendment and revocation of the by-laws;
3. governing honorary benchers, persons who are benchers by virtue of their office and honorary members, and prescribing their rights and privileges;
4. governing members and student members or any class of either of them, and prescribing their rights and privileges;
5. governing the handling of money and other property by members and student members;
6. requiring and prescribing the financial records to be kept by members and providing for the exemption from such requirements of any class of members;
7. requiring and providing for the examination or audit of members' financial records and transactions and for the filing with the Society of reports with respect thereto;
8. requiring members and student members to register an address with the Society and to notify the Society of any changes in the address;
9. requiring members and student members, or any class of either of them specified in the by-laws or specified by the Secretary, to provide the Society with information relating to the Society's functions under this Act;
10. authorizing and providing for the preparation, publication and distribution of a code of professional conduct and ethics;
11. authorizing and providing for the preparation, publication and distribution of guidelines for professional competence;
12. respecting the reporting and publication of the decisions of the courts;
13. authorizing officers or employees of the Society holding offices specified by the by-laws to exercise powers or perform duties of the Secretary under this Act, the regulations, the by-laws or the rules of practice and procedure, subject to such terms and conditions as may be specified by the by-laws or imposed by the Secretary;
14. prescribing fees and levies relating to the functions of the Society, including fees for late compliance with any obligation, that must be paid to the Society by,
i. members and student members or any class of either of them,
ii. applicants for membership in the Society or any class of them,
iii. limited liability partnerships that practise law and applicants for licences for limited liability partnerships to practise law,
iv. persons who give legal advice respecting the law of a jurisdiction outside Canada, and applicants for licences to give such advice,
v. persons authorized to practise law outside Ontario who are permitted to appear as counsel in a specific proceeding in an Ontario court, and applicants for such permission,
vi. persons authorized to practise law in other provinces and territories of Canada who are permitted to engage in the occasional practice of law in Ontario, and applicants for such permission,
vii. partnerships, corporations and other organizations that provide legal services and that maintain one or more offices outside Ontario and one or more offices in Ontario, and applicants for licences to provide such services, and
viii. persons, partnerships, corporations and other organizations that practise law and also practise another profession, and applicants for licences relating to such practices;
15. governing the payment and remission of fees and levies prescribed under paragraph 14 and exempting any class of persons from all or any part of any fee or levy;
16. providing for the payment to the Society by a member or student member of the cost of an audit, investigation, review, search or seizure under Part II;
17. requiring the payment of interest on any amount owed to the Society by any person and prescribing the interest rate;
18. providing for and governing meetings of members or representatives of members;
19. defining and governing the employment of student members while under articles and the employment of other law students;
20. defining and governing the employment of barristers and solicitors clerks;
21. governing degrees in law;
22. providing and governing bursaries, scholarships, medals and prizes;
23. respecting legal education, including the Bar Admission Course;
24. providing for and governing extension courses, continuing legal education and legal research, and prescribing continuing legal education requirements that must be met by members, subject to such exemptions as may be provided for by the by-laws;
25. governing the call to the bar of barristers and the admission and enrolment of solicitors, including prescribing the qualifications required;
26. prescribing oaths and affirmations for members and student members or any class of either of them;
27. providing for and governing libraries;
28. governing the practice of law by limited liability partnerships, including requiring those partnerships to maintain a minimum amount of liability insurance for the purposes of clause 44.2 (b) of the Partnerships Act, requiring the licensing of those partnerships, governing the issuance, renewal, suspension and revocation of licences and governing the terms and conditions that may be imposed on licences;
29. providing for persons authorized to practise law outside Ontario to be permitted to appear as counsel in a specific proceeding in an Ontario court, subject to the approval of the court, governing the granting of permission and the terms and conditions to which the permission may be subject, and making any provision of this Act applicable, with necessary modifications, to those persons;
30. providing for persons authorized to practise law in other provinces and territories of Canada to be permitted to engage in the occasional practice of law in Ontario, governing the granting of permission and the terms and conditions to which the permission may be subject, and making any provision of this Act applicable, with necessary modifications, to those persons;
31. governing the provision of legal services by any partnership, corporation or other organization that maintains one or more offices outside Ontario and one or more offices in Ontario, including requiring the licensing of those partnerships, corporations and other organizations, governing the issuance, renewal, suspension and revocation of licences and governing the terms and conditions that may be imposed on licences;
32. governing the practice of law by any person, partnership, corporation or other organization that also practises another profession, including requiring the licensing of those persons partnerships, corporations and other organizations, governing the issuance, renewal, suspension and revocation of licences and governing the terms and conditions that may be imposed on licences;
33. regulating the giving of legal advice respecting the law of a jurisdiction outside Canada, including requiring a licence issued by the Society, governing the issuance, renewal, suspension and revocation of licences and governing the terms and conditions that may be imposed on licences;
34. providing for the establishment, maintenance and administration of a benevolent fund for members and the dependants of deceased members;
35. governing the acceptance of resignations under section 30;
36. respecting the Lawyers Fund for Client Compensation;
37. governing applications to pay trust money to the Society under section 59.6 and governing the making of and determination of claims under section 59.10;
38. governing the referral of complaints to the Complaints Resolution Commissioner and governing the performance of duties and the exercise of powers by the Commissioner;
39. designating offices held by employees of the Society to which the Complaints Resolution Commissioner may delegate powers or duties;
40. prescribing circumstances in which a direction must be made under section 49.4 requiring that a review of a member's practice be conducted under section 42;
41. governing reviews under section 42;
42. governing the appointment of persons to conduct audits, investigations and reviews under Part II;
43. prescribing a period for the purposes of subsection 46 (1) and governing the payment of amounts owing for the purposes of subsection 46 (2);
44. prescribing a period for the purposes of subsection 47 (1) and governing the completion and filing of documents for the purposes of subsection 47 (2);
45. governing the criteria to be applied and the method to be used under subsection 49.1 (1) in determining whether members have made substantial use of legal skills on a regular basis and prescribing the length of the continuous period of time referred to in that subsection;
46. prescribing the requalification requirements that must be met for the purpose of section 49.1, governing the determination of whether those requirements have been met and prescribing terms and conditions that may be imposed under section 49.1;
47. governing the implementation of agreements with the responsible authorities in other jurisdictions relating to the practice of law;
48. prescribing forms and providing for their use.
(2) Subsection 62 (1) of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 5, is further amended by striking out the portion before paragraph 1 and substituting the following:
Same
(1) Without limiting the generality of paragraph 1 of subsection (0.1), by-laws may be made under that paragraph,
. . . . .
(3) Paragraph 1 of subsection 62 (1) of the Act is repealed.
(4) Paragraph 6 of subsection 62 (1) of the Act is repealed and the following substituted:
6. governing the election of benchers under section 15, including prescribing regions for the purpose of subsection 15 (2), prescribing the terms of office of elected benchers, prescribing the number of benchers to be elected for each region, governing the qualifications required to be a candidate or vote in elections and providing for challenges of election results;
6.1 governing the filling of vacancies in the offices of elected benchers.
(5) Paragraph 7 of subsection 62 (1) of the Act is amended by striking out "providing procedures for the election of" at the beginning and substituting "governing the election of and removal from office of".
(6) Paragraph 8 of subsection 62 (1) of the Act is amended by striking out "Under Treasurer" in the second and third lines and substituting "Chief Executive Officer".
(7) Paragraphs 10 and 11 of subsection 62 (1) of the Act are repealed and the following substituted:
10. providing for the establishment, composition, jurisdiction and operation of the Proceedings Authorization Committee;
11. providing for the establishment, composition, jurisdiction and operation of standing and other committees, including standing committees responsible for discipline matters and for professional competence, and delegating to any committee such of the powers and duties of Convocation as may be considered expedient.
(8) Paragraph 12 of subsection 62 (1) of the Act, as re-enacted by the Statutes of Ontario, 1991, chapter 41, section 5, is repealed.
(9) Paragraphs 13 and 14 of subsection 62 (1) of the Act are repealed.
(10) Paragraph 15 of subsection 62 (1) of the Act, as re-enacted by the Statutes of Ontario, 1991, chapter 41, section 5, is repealed.
(11) Paragraphs 16 to 27 of subsection 62 (1) of the Act are repealed.
(12) Section 62 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 5, is further amended by adding the following subsection:
General or particular
(1.1) A by-law made under this section may be general or particular in its application.
(13) Subsection 62 (2) of the Act is amended by striking out "rules made under subsection (1)" in the first line and substituting "by-laws made under this section".
(14) Subsection 62 (3) of the Act is amended by striking out "rules made under subsection (1)" in the first and second lines and substituting "by-laws made under this section".
30. (1) Section 63 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 6 and 1994, chapter 27, section 49, is further amended by striking out the portion before paragraph 1 and substituting the following:
Regulations
63. Convocation, with the approval of the Lieutenant Governor in Council, may make regulations,
. . . . .
(2) Paragraph 1 of section 63 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 6, is repealed.
(3) Paragraphs 2 to 7 of section 63 of the Act are repealed.
(4) Paragraph 9 of section 63 of the Act is repealed.
(5) Section 63 of the Act, as amended by the Statutes of Ontario, 1991 chapter 41, section 6 and 1994, chapter 27, section 49, is further amended by adding the following paragraphs:
13. governing the appointment of the Complaints Resolution Commissioner;
14. governing the assignment of members of the Hearing Panel to hearings, including the number of persons required to hear and determine different matters;
15. naming, for the purpose of section 31, tribunals that have a judicial or quasi-judicial function.
(6) Section 63 of the Act, as amended by the Statutes of Ontario, 1991, chapter 41, section 6 and 1994, chapter 27, section 49, is further amended by adding the following subsection:
General or particular
(2) A regulation made under this section may be general or particular in its application.
31. The heading immediately preceding section 66 of the Act is struck out and sections 66, 67, 68, 69, 70 and 71 of the Act are repealed.
32. Section 72 of the Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, is repealed.
33. Sections 73 and 74 of the Act are repealed.
Transition: elected benchers
34. (1) A person who, immediately before the day this Act comes into force, held office as a bencher under section 15 or 21 of the Act, as those sections read immediately before that day, shall be deemed to be a bencher elected under subsection 15 (1) of the Act, as re-enacted by this Act.
Same
(2) Any period of time before the day this Act comes into force during which a person held office as a bencher under section 15 or 21 of the Act, as those sections read before that day, shall be deemed, for the purpose of paragraph 3 of subsection 12 (1) of the Act, as re-enacted by this Act, to be a period of time during which the person held office as an elected bencher.
Transition: proceedings
35. (1) If, before the day this Act comes into force, a hearing was commenced in a proceeding under section 27, 31, 33, 35, 46 or 47 of the Act, as those sections read before that day, the proceeding, including any appeal in the proceeding, shall be continued and completed in accordance with the Act, and the regulations and rules made under the Act, as they read before this Act came into force.
Same
(2) If, before the day this Act comes into force, no hearing was commenced in a proceeding referred to in subsection (1), the proceeding shall, with necessary modifications, be continued under the provisions of the Act, as amended by this Act.
Transition: practice reviews
36. (1) If, before this Act comes into force, a review of a member's practice was commenced by the Law Society under the Society's Practice Review Programme, the review shall be deemed to have been required under section 49.4 of the Act, as enacted by this Act.
Same
(2) Subject to subsection (4), if, before this Act comes into force, a review of a member's practice was conducted by the Law Society under the Society's Practice Review Programme and recommendations were made to the member as a result of the review, the recommendations shall be deemed to constitute the terms of a proposal for an order made by the Secretary of the Law Society under subsection 42 (4) of the Act, as enacted by this Act.
Same
(3) If, before this Act comes into force, a review of a member's practice was conducted by the Law Society under the Society's Practice Review Programme, recommendations were made to the member as a result of the review and the member refused to accept the recommendations, the member shall be deemed to have refused to accept a proposal for an order made by the Secretary of the Law Society under subsection 42 (4) of the Act, as enacted by this Act.
Same
(4) If, before this Act comes into force, a review of a member's practice was conducted by the Law Society under the Society's Practice Review Programme, recommendations were made to the member as a result of the review and the member accepted the recommendations, the recommendations shall be deemed to constitute the terms of an order made by a bencher of the Law Society under subsection 42 (7) of the Act, as enacted by this Act.
Transition: application to past events
37. Orders may be made under the Act, as amended by this Act, and proceedings may be commenced under the Act, as amended by this Act, in respect of events that occurred and time periods that commenced before this Act came into force.
Commencement
38. This Act comes into force on the later of the following dates:
1. January 1, 1999.
2. The first day of the second month after the month in which this Act receives Royal Assent.
Short title
39. The short title of this Act is the Law Society Amendment Act, 1998.
EXPLANATORY NOTE
The Bill contains amendments to the Law Society Act. For example, these amendments include the following:
1. The Law Society would be authorized to hold elections for benchers on a regional basis.
2. The number of lay benchers appointed by the Lieutenant Governor in Council would be increased from four to eight.
3. The provisions of the Act relating to the conduct, capacity and professional competence of lawyers would be significantly revised. The Law Society Hearing Panel and the Law Society Appeal Panel would be established to conduct proceedings and make orders relating to these matters. The Law Society's investigative powers would be specified in the Act. A Complaints Resolution Commissioner would be appointed to review and resolve certain kinds of complaints.
4. The Law Society would be authorized to receive unclaimed trust funds from lawyers and to hold these funds in trust for the persons entitled to the money. Interest on these unclaimed funds would be paid to the Law Foundation.
5. Lawyers would be permitted to form limited liability partnerships in accordance with the amendments made by the Partnerships Statute Law Amendment Act, 1998. The unproclaimed provisions of the Law Society Act that deal with law corporations would be repealed.
Copyright © 1998
Office of the Legislative Assembly of Ontario
Toronto, Ontario, Canada.