Law Society Reverses Zoraik Decision: Good Character Established

On October 12, 2018 Malcolm Zoraik applied to be admitted to the Ontario bar. After a 2-day hearing his application was dismissed. But that is not the last word in Mr. Zoraik’s journey to re-establish himself as a member of the bar.

On June 3, 2019 Mr. Zoraik appealed the earlier decision of the Law Society tribunal citing multiple grounds of appeal and presenting fresh evidence, namely, a pardon from the National Parole Board pursuant to the Criminal Records Act. The pardon related to three convictions in British Columbia for public mischief, obstruction of justice, and fabrication of evidence, in relation to a personal injury trial he conducted in Victoria B.C.

His grounds of appeal included:

A. The hearing panel erred in law and misapprehended the evidence by focusing unduly on the appellant’s failure to express remorse for the actions that resulted in his criminal conviction.

B. The hearing panel erred in law in relying on the adverse credibility findings that the courts had made against the appellant in the criminal proceedings.

C. The hearing panel erred in law by requiring the appellant to demonstrate that he had taken the necessary steps to “ensure” that he would not commit professional misconduct if he were licensed.

D. The hearing panel erred in law by drawing adverse inferences against the appellant on two issues despite an absence of evidence to support such conclusions. These issues concerned

i. the timing and circumstances of the appellant’s bankruptcy and his discharge;

ii. the relevant time span over which the appellant had presented evidence of rehabilitation and correction.

E. The hearing panel erred in law by applying the penalty decision of the BC disciplinary panel to discount the appellant’s character evidence in the instant application.

The appeal panel found that the earlier decision focused primarily on Mr. Zoraik’s approach to his previous convictions, noting that the earlier panel referred to Mr. Zoraik’s refusal to discuss the convictions ten times in their reasons. While Mr. Zoraik acknowledged the convictions, he had declined to discuss the underlying events, his version of what occurred, or his sworn testimony in support of his not guilty plea at the B.C. criminal trial. The appeal panel agreed that the earlier panel’s treatment of his approach constituted an error in law.

They also found the earlier panel erred in law by requiring Mr. Zoraik to ensure there would be no recurrence of misconduct, noting that an applicant does not have to guarantee that no future misconduct will occur or predict what may occur in the future.

A further error was related to the panel’s treatment of Mr. Zoraik’s earlier bankruptcy, where adverse findings were found to have been made with no supporting evidence.

In relation to the time that had elapsed since Mr. Zoraik’s difficulties, the appeal panel found that he had provided ample evidence of his rehabilitative efforts, commendable behaviour, and acceptance of the convictions and disbarment during the period since at least 2013. The earlier panel again misapprehended the relevance of this evidence, with their over-reliance on the “remorse” issue.

Finally, the appeal panel found that the earlier panel inappropriately discounted positive character evidence provided by a variety of individuals including two licensees whom he had worked for several years during his extended Ontario articles; a legal assistant; the Executive Director of the Somali Immigrant Aid Organization and Midaynta Community Services, where Mr. Zoraik volunteered in providing guidance and leadership to Somali youth; and clients and former colleagues.

Mr. Zoriak’s appeal was allowed; a finding of good character was recorded; and an exemption from writing any further licensing exams was ordered. Zoraik v. Law Society of Ontario, 2019 ONLSTA 11

Lawdiva aka Georgialee Lang

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