Decisions of Administrative Tribunals; Barristers and Solicitors - Admission to Profession - Hearings; Judicial Review - Evidence - Credibility - Compliance with Legislation - Failure to Provide Adequate Reasons

Mohan v. Law Society of British Columbia

After eight years, an articled student is given the right to be enrolled by the Law Society of British Columbia ("LawSoc") with conditions.

[2013] B.C.J. No. 2487

2013 BCCA 489

British Columbia Court of Appeal

R.T.A. Low, C.E. Hinkson and D.C. Harris JJ.A.

November 18, 2013

In July 2012, the majority of a LawSoc Hearing Panel ordered that the appellant Mr. Mohan (the "student") be enrolled by the LawSoc as an articled student with certain conditions on his practice. The Credentials Committee of the LawSoc issued a notice of review. The LawSoc Review Board set aside the Hearing Panel's decision and rejected the student's application for enrollment. The student successfully appealed the Review Board's decision; the B.C. Court of Appeal set aside the decision of the Review Board and restored the Hearing Panel's disposition.

By way of background, during the student's studies at UBC he cheated on a mathematics exam while an undergraduate and plagiarized an essay while a law student. In 2004 he sought permission from the LawSoc to enroll as a temporary articling student but then withdrew that application. In 2010 he submitted a second application to the LawSoc to be enrolled as an articled student. Given his academic dishonesty, the Credentials Committee ordered a hearing pursuant to s. 19(2)(c) of the Legal Professions Act. This section provides that no person may be enrolled as an articled student unless the benchers are satisfied that the person is of good character and repute and is fit to become a barrister and solicitor to the Supreme Court.

There were two issues before the Hearing Panel. The first issue was whether the student was now of good character and repute notwithstanding: (i) cheating on his math exam in 1995, (ii) plagiarizing a paper in law school in 2002 and his academic suspension, (iii) not admitting the math exam cheating and academic suspension on his 2004 LawSoc admission form and (iv) not being forthright about cheating on the math exam. The second issue was 'if so', whether the student's explanation for the plagiarized thesis affected the Panel's determination of good character, fitness and repute under s.19(2).

At the hearing, the student admitted to the Hearing Panel he failed to disclose the math exam incident and his suspension from university in his 2004 application to enroll. Regarding the thesis, he explained that he prepared a preliminary draft which contained plagiarized material and that it was his intention to use it only if he ran out of time to do original work before the thesis submission deadline. However, he explained he submitted a non-plagiarized thesis to UBC by revising his earlier draft and eliminating all plagiarized material. He testified that it was his revised thesis that was submitted for grading but that he accidentally also delivered a copy of the original plagiarized thesis to his UBC professor.

The majority of the Hearing Panel concluded that the student rehabilitated and redeemed himself since 2005 and was of good character. While the majority had serious concerns about the student's evidence concerning his thesis, they concluded there was no evidence before them that was inconsistent with his evidence on the issue. As a result, the Hearing Panel ordered that he be enrolled in the LawSoc admission program.

The Credentials Committee issued a notice of review. The Review Board set aside the order of the Hearing Panel in an unanimous decision. The Review Board found that the Hearing Panel: (i) did not make a finding on the credibility of the student (and referred to the Haering Panel's comment that they had "serious concerns" about the student's evidence) (ii) erred in stating that there was no evidence before them inconsistent with the student's evidence (on the basis that there was circumstantial evidence that needed to be considered regarding the credibility of the student's version of events) and (ii) if they implicitly made a finding of credibility, they did not state their reasons for such a conclusion in accordance with the preponderance of probabilities in the case.

The student appealed the Review Board's decision to the B.C. Court of Appeal. The Appeal Court restored the Hearing Panel's decision to allow the student to enroll as an articled student. The Appeal Court found that the Review Board erred in finding that the Hearing Panel made no finding with respect to the student's credibility regarding his thesis. The Court found that the majority of the Hearing Panel recognized the issues before them and made an implicit finding of credibility including by setting out the very circumstantial evidence that the Review Board said required analysis. The Court noted that the fact that the Hearing Panel might have stated its finding more clearly is no basis upon which to interfere with their decision. Because the Review Board did not provide deference to the findings of the Hearing Panel, the Appeal Court found that the Review Board erred as a matter of law. The Appeal Court set aside the Review Board's decision and restored the Hearing Panel's decision.