Procedural Fairness in Academic Dishonesty Licensing Decisions
In Afolabi v. Law Society of Ontario,[1] the Ontario Court of Appeal allowed the Law Society of Ontario’s (LSO) appeal and provided helpful analysis on the scope of procedural fairness owed in professional regulation licensing decisions. Central to the CA’s reasoning was its conclusion that the Divisional Court[2] misunderstood the regulatory structure governing the LSO’s response to compromised licensing exams and, in doing so, conflated the distinct roles of two LSO divisions.
Background
After learning that the integrity of the November 2021 barrister and solicitor licensing examinations had been compromised, the LSO initiated two parallel responses:
the Licensing Department was tasked with protecting the integrity of the licensing process by reviewing exam results and candidate registration status; and
the Professional Regulation Division, through external counsel, investigated potential ethical and good‑character concerns arising from the suspected misconduct.
Based on statistical analysis identifying anomalous exam results, the Licensing Department voided certain candidates’ exam results and registrations pursuant to By‑law 4. The Divisional Court upheld the exam invalidations but held that voiding the candidates’ registrations without an oral hearing breached procedural fairness.
The Court of Appeal disagreed, finding that Divisional Court had misapplied the Baker factors, which determine the scope and content of procedural fairness owed.
Nature of the Decision was Administrative, Not Quasi‑Judicial
The Court of Appeal found that the impugned decision was made by the Licensing Department, exercising an administrative function under By‑law 4. The Licensing Department was not adjudicating misconduct, assessing credibility, or making findings about moral blameworthiness. Rather, the decision addressed whether candidates remained eligible to continue in the licensing process in light of compromised exam integrity.
The relevant provisions of By‑law 4 did not prescribe a hearing or any adjudicative safeguards. As a result, the Court of Appeal found no basis for importing trial‑like procedural requirements into what was, at its core, an administrative licensing determination.
Statutory Context and Distinct Institutional Roles
A central error identified by the Court of Appeal was the Divisional Court’s conflation of the roles of the Licensing Department and the Professional Regulation Division.
While both divisions were responding to the same underlying events, they were doing so for different statutory purposes:
The Licensing Department addressed exam integrity and regulatory compliance under By‑law 4.
The Professional Regulation Division investigated broader ethical and good‑character issues that could, if pursued, lead to a hearing before the Law Society Tribunal under s. 27(4) of the Law Society Act.
The Court of Appeal noted that the Licensing Department’s decision did not determine good character and did not refuse to issue a licence. Accordingly, it did not engage the mandatory hearing requirement under s. 27(4) of the Law Society Act. The Divisional Court’s conclusion that voiding registration effectively amounted to a good‑character refusal reflected a misunderstanding of the statutory scheme.
Serious Consequences Do Not Dictate Procedure
The Court of Appeal accepted that the decision had significant consequences for the applicants. However, seriousness alone does not determine the content of procedural fairness. Where the statute explicitly states that hearings are only required in defined circumstances — and none applied here — written processes can suffice.
No Legitimate Expectation of an Oral Hearing
The applicants could point to no promise, representation, or established practice suggesting that licensing decisions under By‑law 4 were preceded by oral hearings. References to possible future good‑character hearings were clearly confined to a separate process administered by a different division.
Procedural Choices Were Fair in Context
The Court of Appeal underscored that fairness analysis must respect the procedural choices of the decision‑maker where legislation grants flexibility. Here, the Licensing Department provided:
disclosure of the evidence,
multiple opportunities for written submissions,
detailed reasons,
and an internal review that reduced the period of disqualification.
Taken together — and particularly given the scale of the regulatory response — these safeguards satisfied the duty of procedural fairness.
Conclusion
Afolabi is a reminder that fairness arguments must be grounded in the actual statutory context and role of the decision‑maker. Even where consequences are serious, fairness may be met through robust written processes, especially in large-scale regulatory contexts. The decision also highlights the need to recognize institutional distinctions within regulatory bodies: parallel investigative and licensing processes do not merge merely because they arise from the same factual event.
[1]Afolabi v. Law Society of Ontario, 2025 ONCA 257 (CanLII), < https://canlii.ca/t/kbfs4 >,
[2]Mirza et al. v. Law Society of Ontario, 2023 ONSC 6727 (CanLII), < https://canlii.ca/t/k1dzw >
