Cheating on licensing examinations has consequences

The Appellant, Law Society of Ontario (“LSO”), was successful in appealing a decision of the Ontario Divisional Court. The Divisional Court had found a breach of procedural fairness by the LSO in imposing consequences on several applicants (the Respondents) who were accused of cheating on their licensing examinations. 

Administrative law – Decisions reviewed – Judicial review – Appeals – Quasi-judicial tribunals – Procedural requirements and fairness – Costs – Professions – Self-governing professions – Non-statutory organizations, Powers

Mirza v. Law Society of Ontario, [2025] O.J. No. 1545, Ontario Court of Appeal, April 7, 2025, E.E. Gillese, L.B. Roberts and S.A. Coroza JJ.A.

The Appellant, Law Society of Ontario (“LSO”), administered licensing examinations in November 2021. The LSO later learned that a tutor agency, NCA Exam Guru (“NEG”), obtained the exams in advance and shared the answers in a document called a “cheating key”. The LSO’s Licensing & Accreditation Department (the “Licensing Department”) reviewed the November 2021 examination results and identified licensing candidates whose test results indicated a possible connection to the cheating key. The Licensing Department retained an external investigator (the “Investigator”) to analyze the November 2021 exam results to determine whether a candidate had access to the cheating key.

The Respondents are twenty applicants who had results that suggested, according to the Investigator, that they had access to the cheating key.  All but one of the Applicants was associated with NEG. 

In 2022, the Licensing Department wrote to the Respondents alleging that they breached the licensing rules and their exam results and registration was deemed to be void (the “Decision”). The letter also indicated other consequences, including:

• They had to wait one year to re-register for licensing with the LSO;
• They had to disclose this incident on the questions about “good character”, if they applied for licensure in Ontario or another jurisdiction;
• The LSO might conduct a further investigation into their character; and
• The LSO would share its decision with other Canadian law societies.

The Respondents applied for judicial review of the Decision (the “Applications”). The Divisional Court concluded that the decision to void the Respondents’ exam results was reasonable. The Divisional Court found that the other measures taken by the LSO breached its duty of procedural fairness to the Respondents because they were imposed without a hearing. The Divisional Court quashed the Decision, except for the voiding of the exam results, and remitted the matter to the LSO. The Divisional Court awarded costs in favour of the Respondents.

The LSO appealed the decision to the Court of Appeal (“Court of Appeal”).

The Court of Appeal allowed the appeal. 

The Court of Appeal concluded that the Divisional Court applied the correct standard of review relating to the disputed aspects of the Decision. The Court of Appeal assessed whether the Divisional Court correctly applied the Baker factors when assessing the procedural fairness question. The Court of Appeal concluded that the Divisional Court erred in its application of the Baker factors. Most significantly, the Court of Appeal held that the LSO’s actions were administrative in nature, not quasi-judicial, and did not require a hearing. The Court of Appeal reviewed the distinct roles of the Licensing Department of the LSO and the Professional Regulation Division of the LSO. The Court of Appeal found the LSO met its duty of procedural fairness as the Respondents received disclosure of the allegations and a chance to respond in writing.

Based on its decision on the merits, the Court of Appeal set aside the costs award made by the Divisional Court. The Court of Appeal awarded costs to the LSO. 

Although not necessary, the Court of Appeal also addressed the LSO’s argument that the Divisional Court had erred in failing to hear the parties with respect to costs before making a costs order. The Court of Appeal agreed that the Divisional Court had erred in this regard.

The Court of Appeal:

• allowed the appeal;
• quashed the Divisional Court’s decision;
• substituted orders dismissing the Applications;
• granted the LSO’s motion to introduce new evidence regarding costs; 
• awarded costs of the LSO’s motion and the appeal to the LSO, payable severally by each Respondent in the amount of $1,200; and
• awarded costs of the Applications to the LSO payable severally by each Respondent in the amount of $2,000.

This case was digested by Scott J. Marcinkow of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact him directly at [email protected].